Date: 20110208
Docket: T-2128-10
Citation: 2011 FC
147
Ottawa, Ontario, February 8, 2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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LOWER NICOLA INDIAN BAND
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Applicant
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and
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CHARLENE JOE, MARCY GARCIA,
DAVID CLAYTON, STUART JACKSON, ROBERT
STERLING JR. and
MARY JUNE COUTLEE
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and
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Respondents
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COUNCIL OF ELDERS OF THE
LOWER NICOLA INDIAN BAND
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Intervener
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REASONS FOR ORDER AND ORDER
[1]
This
motion by the Lower Nicola Indian Band (“the LNIB”) is for interim relief
pending the hearing and determination of the within application for judicial
review (“the Application”) of the December 1, 2010 Decision and Order of the
Lower Nicola Indian Band Elders Council (“the Elders Council”) deciding
election appeals under the Custom Rules of the Lower Nicola Indian Band (“the
decision”), the said decision declares three seats occupied by Mary June
Coutlee, Stuart Jackson and Robert Sterling Jr. on the Council of the Lower
Nicola Indian Band (“the Band Council”) following an election held October 2,
2010, vacant and appoints three (3) of the three (3) other respondents, namely
Charlene Joe, Marcy Garcia and David Clayton retroactively to October 2, 2010.
It is argued that the decision was made contrary to the Custom Election Rules
of the Lower Nicola Indian Band (“the Rules”). To deal with this interim
request, the Court held two hearings via teleconference, as well as a public
hearing.
[2]
The
applicant is seeking, pursuant to Rule 398 of the Federal Courts Rules,
SOR/2004-282 (“the Rules of the Court”) and the inherent jurisdiction of the
Court, an order staying or suspending the operation of the decision made by the
Elders Council pending the hearing and determination of the within Application
and, furthermore, pursuant to Rule 373 of the same Rules and the inherent
jurisdiction of the Court, preserve the status quo of the October 2, 2010 election
by enjoining and prohibiting the respondents Charlene Joe, Marcy Garcia and
David Clayton from holding themselves out and acting as councillors of the Band
Council pending the hearing and determination of the within Application and thereby
“declaring” that the other respondents, Mary June Coutlee, Stuart Jackson and
Robert Sterling Jr. are and shall continue to act as councillors of the Band
Council pending the determination of the within Application.
[3]
On January
31, 2011, the Elders Council was given limited status to intervene.
[4]
The Chief
of the Band, Victor York, did submit his own documentation which could be understood
as a motion to intervene. It was refused since the documentation as filed did
not justify granting intervener status. During one of the hearings, the Court
noted that the applicant’s record clearly indicated that the Chief of the Band
duly elected was not in agreement with the decision of the Band Council made up
of the elected Councillors as a result of the October 2, 2010 election. It was
also understood that the self-represented respondents, David Clayton and
Charlene Joe, were taking, in their motion, record the same position as the
Chief, something that was made clearer during the oral arguments.
[5]
The
applicant, the respondent Mary Jane Coutlee and the Elders Council as interveners
are represented by counsel. The respondents, David Clayton and Charlene Joe
represented themselves and have filed their respective motion record as well as
a number of letters opposing the interim measure made and the within Application.
The other respondents, Marcy Garcia, Stuart Jackson and Robert Sterling Jr.,
elected October 2, 2010 are not represented except that their interest is
represented by one of the respective position taken by the parties.
The Issues at Bar
[6]
The Lower
Nicola Indian Band is a band that is exempt from section 74 of the Indian
Act, R.S. 1985, c. I-5 (“Indian Act”), as its Custom Elections Rules
trump the application of the Indian Act in regards to elections held.
[7]
In
essence, the Band Council made up of the Chief and seven (7) councillors is in a
power struggle. Three (3) councillor seats are at play. Who shall fill them as
a result of the within Application is unknown. Will it be the three (3) elected
councillors of the October 2, 2010 election (the “elected “Councillors””) or
the three (3) councillors appointed by the Elders Council’s decision of
December 1, 2010 (the “named “Councillors””)? Which status quo should be
recognized: the election results or the Elders Council decision if one has to
be identified or is there another route to follow that will not advantage one
set of councillors versus another?
[8]
The Court
has noted that four (4) of the seven (7) councillor seats and the Chief’s
Office are not in question. What is at play with the present litigation is the
balance of power to be exercised at Council’s meetings.
[9]
It is
clear that the underlying application for judicial review stems from the
political uncertainty that has nearly paralyzed the governance structures of
the LNIB. This is abundantly clear from the parties’ pleadings and
presentations of the facts. Background information on this struggle can be
found in Madam Justice Tremblay-Lamer’s reasons in Basil v Moses, 2009
FC 741. In short, through this decision, Madam Justice Tremblay-Lamer ruled
that the findings of the Elders Investigation Committee were reasonable in
regards to the breach of fiduciary duties by then-Councillors Sam, Coutlee and
Jackson, whose resignations were validly given and accepted by then-Chief
Moses. However, this was only one of the findings made by Justice Tremblay-Lamer.
As three Band Council Resolutions were found to be invalid, the underlying
questions of these persons’ eligibility for electoral office were to be
determined by way of referendum.
[10]
In order
to understand the underlying issues at play, a brief summary review of the
applicant’s is as follows: it is alleged that the Elders Council in rejecting
the October 2, 2010 results in the case of respondents Stuart Jackson, Robert
Sterling Jr. and Mary June Coutlee and appointing respondents Charlene Joe,
Marcy Garcia and David Clayton made a decision that should be quashed because
of bias and a reasonable apprehension of bias in that some of the members of
the Elders Council were family related to some of the respondents or that
through past experiences, as member of earlier Elders Investigative Committee
were part of a conflict of interest situation in relation to some of the
respondents and that the Elders Council had appointed a lawyer that had worked
for one of the Elders Investigative Committee in unsuccessfully attempting to
approach some of the respondents. It also relies on a proper interpretation to
be the Custom Election Rules to support their objective.
[11]
Counsel
for the respondent Mary June Coutlee, on her behalf, agrees with and supports
the submission made by the applicant.
[12]
The
self-represented respondents David Clayton and Charlene Joe clearly oppose the
interim request being sought and the within Application. It is argued, among
other matters, in accordance with the Custom Election Rules, that the Elders
Council is the forum to deal with election issues and that as such it is the
final legal electoral decision made and that their decision of December 1, 2010
should not be stayed.
[13]
Thus, the
crux of this interim stay motion and interim motion for injunctive relief is
one of balancing rival political interests. As will be seen, there is a clear
tension between two important elements of the LNIB’s governance structure: the
election results and the Elders Council’s decision.
[14]
It is to
be noted that other legal procedures also exist, which are the related to the
factual matrix of this procedure. The Court is not seized of any of these other
procedures.
The Test for Interim Relief
[15]
In order
to be successful, the present interim request must meet the tripartite test set
out by the Supreme Court in R.J.R. MacDonald Inc. v Canada (Attorney
General), [1994] 1 S.C.R. 311, whereby it must be shown that there is: 1) a
serious issue to be tried; 2) irreparable harm should the interim relief not be
granted; and 3) that the balance of convenience favours the applicant. This
test has been applied countless times in aboriginal matters (see, inter alia,
Basil et al v Council of the Lower Nicola Indian Band, 2009 FC 1039; Gabriel
v Mohawk Council of Kanesatake¸2002 FCT 483 (FC) and Prince et al v
Sucker Creek First Nation #150A et al, 2008 FC 479).
A Serious Issue to be Tried
[16]
There is
no doubt that serious issues arise from the present litigation. Governance of
the LNIB and transparency are at play. Being divided as the respondents are and
also the Band Council, the interest of the Band as a whole is not adequately
served with the preservation of the status quo. Indeed, the status
quo, as is indicated in the parties’ representations of the facts, is one
of tension and uncertainty as to who holds valid office.
[17]
The
underlying application raises serious issues in regards to, among other issues,
the scope of the Elders Council’s powers as well the validity of the October 2,
2010 election results. This aspect of the test is thus clearly met.
Irreparable Harm
[18]
Harm
clearly arises from this situation: as Joanne Lafferty’s affidavit indicates,
at para 45, several important matters of governance and negotiations are to be
monitored and decided upon by the LNIB Council. Among these issues are
negotiations and activities of a commercial nature that are essential to the
interests of the LNIB.
[19]
There is
some harm, is it irreparable? What can be defined as the status quo: the
election results or the Elders Council’s decision? Which situation should
prevail? Is it appropriate to favour one side versus another at this stage? The
main issues cannot be dealt with without a proper complete analysis and the Court
is mindful, by an interim solution, of pre-judging the underlying application.
[20]
Irreparable
harm is not qualified as “irreparable” because of the scope or importance of
the harm caused. Rather, what must be shown is that, but for the injunctive
relief sought, the harm caused could not later be compensated through damages (White
v E.B.F. Manufacturing Ltd., 2001 FCT 1133 (FC), at para 13). Madam Justice
Tremblay-Lamer has noted the particular implications of the loss of elected
office and how it differs to the normal employment context in Gabriel,
above. This was cited approvingly by Mister Justice Kelen in Prince,
above, in the context of the dismissal of Councillors, a situation not unlike
the case at bar. Justice Kelen noted in all clarity at paragraph 32 that:
Removal from this office means that the
applicants cannot speak out on behalf of those policies for which they were
elected, either at Council meetings or within the community at large. Such a
situation not only irreparably harms not only the applicants themselves, but
also those individuals who elected them as their representatives (…)
[21]
However,
in this case, the Court distinguishes the scope of Justice Kelen’s dicta,
as without proper nuance, the present Interim application may skew the
underlying application. Here, the irreparable harm is not to be interpreted as
being personal to any named person or the Council in particular. Rather, it is common
to all Parties, but more importantly, it is the members of the LNIB who suffer
irreparable harm by having such conflict and uncertainty in their power
structures.
Balance of Convenience
[22]
During the
course of the hearing, the Court voiced a clear concern that the interim Order
should not favour one party or another. At face-value, the Council or the
Respondents seek an interim solution that favours their interests. This concern
was voiced and counsel for the LNIB Council, Mr. Rolf, came up with a remedy
favouring less markedly one side than the other. The respondents, Clayton and
Joe, opposed this proposition: they would like the Chief to assume all
administrative powers. However, the Court notes that most of the remedies here
would not only favour one faction over the other, but could also be seen as a
determination of the underlying application for judicial review.
[23]
The
evidence provided by way of affidavit is clear: an untenable political
situation has befallen the LNIB Council. The three Councillors whose elections
were contested to the Elders Council, Robert Stirling Jr., Stuart Jackson and
Mary June Coutlee, continued to sit at “Council”, while the three “Councillors”
appointed by the Elders Council sought to have their “office” recognized.
Again, the Court notes, namely through its use of apostrophes, that these are
unresolved questions to be determined by the underlying application. At this stage,
the very least that can be said is that the situation is unreasonable for the
Band as a whole.
[24]
The
Council calls for action under the Court’s inherent and equitable jurisdiction.
Case law presents an important corollary to this call for interim relief: that
of the “clean hands” doctrine. As aptly noted by Justice Goodman of the High
Court of Justice of Ontario in Peleshok Motors Ltd. v General Motors Ltd.
(1977), [1977] OJ No 810, 2 BLR 56 (Ont. H.C.), at para. 26:
The principle that “he who comes in
equity must come with clean hands” is applicable to proceedings such as this.
In Snell's Principles of Equity [27th ed., 1973] it is said, at p. 32:
This maxim, which seems not unrelated to
the ex turpi causa non oritur actio of the common law, is very similar
to the previous maxim; but it differs from it in looking to the past rather
than the future. The plaintiff not only must be prepared now to do what is
right and fair, but also must show that his past record in the transaction is
clean; for “he who has committed Iniquity ... shall not have Equity” (…)
The maxim must not be taken too widely;
“Equity does not demand that its suitors shall have led blameless lives.” What
bars the claim is not a general depravity but one which has “an immediate and
necessary relation to the equity sued for.”
[25]
Again, a
determination of the Applicant’s or Respondents’ “clean hands” is in and of
itself a determination of the underlying application. However, it must be said
here that neither party has put forth the ideal case for equitable relief. On
one side, the Council, through the conduct of three “Councillors” conduct, has
disregarded a ruling of a respected and important institution within the LNIB,
the Elders Council. The importance of the institution was confirmed by Madam
Justice Tremblay-Lamer in Basil, above, at paragraph 52.
[26]
However,
on that occasion, the Court also nuanced the Elders Council’s adjudicative
powers (see Basil, above, at paragraph 58). As well, despite this
apparent uncertainty, the three named “Councillors” sought to act upon the “Office”
they were assigned by the Elders Council. It can be stated, without this being
adjudicative, that there is a prima facie issue with the composition of
the Council on this occasion, on the grounds of conflict of interest.
[27]
It is also
important to state that, all the while, the underlying issue of the eligibility
of Council members found guilty of a breach of their fiduciary duties was to be
determined by way of referendum, as per Madam Justice Tremblay-Lamer’s decision
in Basil, above. Also, the matter of the candidates’ eligibility was to
be judicially reviewed in light of Band Council Resolutions barring them from
running in a by-election, but the application was subsequently stayed (see
T-1531-09, as well as the Interim ruling of Mister Justice Barnes in Basil
et al v The Council of the Lower Nicola Indian Band, 2009 FC 1039). Also, a
serious question is raised in regards to the legal criteria by which the Elders
Counsel’s judged the matter.
[28]
The
grounds for this interim motion rely partly on the Court’s equitable
jurisdiction. Equity, it is clear, calls for remedies that do safeguard the
rights of the respective parties. In this respect, remedies must be crafted
with due consideration on their effects and how they might skew the underlying
application. It would be illogical for “equitable remedies” to be clearly
inequitable in their effects and scope by making a determination of the
underlying application. Again, most of the remedies available to the Court
either favour one party or the other, which would constitute a determination of
the underlying application for judicial review.
[29]
These
considerations guide the Court in crafting what it considers to be an equitable
remedy in the circumstance.
[30]
The
Applicant takes issue with the loss of “office” by three elected Councillors.
This proposition is detailed in the following manner:
It is not only the LNIB Electors who are
being irreparably harmed in the present situation but it is the whole LNIB
which is being irreparably harmed by losing the benefit of the opinions and
advice that Mary June Coutlee, Stuart Jackson and Robert Stirling would bring
to the Council table and by the loss of certainty in the authority and
legitimacy of Council’s decision relating to both its internal dealings with
members and staff and to its external dealings with governments and businesses.
(emphasis added)
[31]
The fact
that apparent and effective authorities are not perfectly in synch is manifest
by this application. Three “Councillors” derive their authority from an election
that is at face-value valid, despite the underlying issue of their eligibility
that was to be determined. The Court cannot dictate if and when the referendum
prescribed by Madam Justice Tremblay-Lamer should proceed, and an election was
held before this referendum could be held. Three other “Councillors” derive
their apparent authority from a respected institution, that of the Elders
Council. Which three “Councillors” should prevail is clearly the main issue of
the underlying application. In the meantime, two “factions” derive their power
from presumably legitimate sources. They are presumed legitimate until the
matter at hand is resolved by way of judicial review.
[32]
While it
remains clear that the Court should thread cautiously in intervening unduly in
the political affairs of First Nations (Sweetgrass First Nation v Gollan,
2006 FC 778), the remedies sought on an interim basis clearly call for a direct
intervention in a difficult political situation. In light of the best interests
of LNIB membership pending determination of the application, the Court orders
the following on an interim basis. This Order sufficiently mitigates the
“balance of convenience” aspect of the tripartite test.
[33]
As the
Elders Council’s decision is impugned, the effective Council for the following
matters is the Council as it was elected on October 2, 2010. These matters are
principally: day-to-day administration, the provision of essential services,
ordinary payable accounts, management of administrative staff, urgent acts to
safeguard the rights of the membership, subscribing of insurance, and like
matters. This apparently non-restrictive list is to be interpreted in light of
the other matters which the elected Council may not rule upon without the
participation of the three “named” Councillors. Quorum and procedural questions
for these matters remains the same as prescribed by the Lower Nicola Indian
Band – Chief and Council Policy and Guidelines.
[34]
In order
to allow for transparency, the three named “Councillors” shall receive advance
notice of every Council meeting and be allowed to be present and free of
harassment or persecution in their presence at Council meetings. They shall
have a limited right of participation in these matters, but may not cast a vote
in the matters noted above in paragraph 33. The aim here is to remedy the
potential prejudice the named “Councillors” should their appointment be found
to be valid.
[35]
As
indicated, the Council elected on October 2, 2010 may act as the effective
Council for the LNIB in the above mentioned matters. As indicated by the
affidavit of Joanne Lafferty, several other important matters need to be
resolved. These are:
-
Employing
a full time Executive Director for the Council term 2010-2013;
- Preparation
of budgets for fiscal year 2011-2012 prior to end of fiscal year at the end of
March 2011;
- Referendum
of Custom Election Rules;
- Negotiations with
BC Hydro – ILM Project and MAT Project;
- Negotiations with Highland Valley Copper Mine;
- Economic
Development Project – Gateway 286 project;
- Lands, Rights and
Title – Kwioek Creek Project;
- NAIK Development Corporation
– Accountability to Membership;
- Shulus Cattle
Company – Accountability to Membership;
- Spayum Development
– Insurance settlements and negotiations.
[36]
These
are important matters that go well beyond the interest of Council Members,
staff and the Council itself: these are determinative matters that impact the
whole LNIB membership. As the Applicant noted, “the whole LNIB which is being
irreparably harmed (…) by the loss of certainty in the authority and legitimacy
of Council’s decision relating to both its internal dealings with members and
staff and to its external dealings with governments and businesses”. To remedy
this loss of certainty in the authority and legitimacy of Council’s decisions,
the important matters noted above and decisions of similar scope are to be
resolved in the following manner. Effective Council for these matters will be
constituted of the Council elected on October 2, 2010, as well as the three “Councillors”
named by the Elders Council. As these decisions and like matters clearly
transcend the punctual nature of this application, it is clear that these
decisions must be made with the utmost legitimacy. This equitable remedy
prevents these important decisions to be later impugned for want of valid
office, should the elected “Councillors” later be found to be ineligible for
office. More importantly, by imposing a consensus-based decision-making for
important decisions, the Court wishes to see the higher interests of the LNIB
membership recognized by all parties involved.
[37]
Also, the
matters that were determined between October 2, 2010 and the present date are
to be redetermined accordingly with the present Order. In the interests of
dispelling any ambiguity, matters that fall into the acts described at
paragraph 33 still stand if they were made in conformity with the Lower
Nicola Indian Band – Chief and Council Policy and Guidelines. Other matters
need to be resolved with the participation of the named “Councillors”, in light
of the LNIB membership’s higher interests.
[38]
Without
commenting further to the nature of the resolutions passed between October 2,
2010 and the present date, it is clear that the meetings need to have been
“duly convened” in light of the LNIB’s rules and applicable case law. Also, any
resolution pertaining to privileges or advantages of any Councillor or the
Chief need to be determined with the larger, consensus-based decision-making
process.
[39]
It is
clear that Chief York will need to fully assume the leadership responsibilities
entrusted to him by the LNIB membership, who undoubtedly expect no less than an
effective and proactive resolution of the present issues. The Lower Nicola
Indian Band – Chief and Council Policy and Guidelines clearly recognize
leadership functions to the Chief, for example to convene Council, act as
spokesperson, act in a supervisory capacity to other Council member’s
activities, as well as making decisions as necessary for good government.
[40]
Respect
for Chief York’s functions and role is mandatory. He will have to manoeuvre a
difficult political situation. However, his Office is not debated or at issue
in the present application for judicial review. As such, his authority and
functions are not contested, as are the three elected “Councillors” and three
named “Councillors” hypothetical functions are. As such, his legitimacy is
manifest, but needs to be exercised with proper consideration of the LNIB’s
membership’s interests. These interests go above and beyond the resolution of
the present matter. Surely, no one will be satisfied by the present Order and
its consequences. However, the Order transcends the Parties wishes in order to
fully address the needs of the LNIB membership in terms of good governance and
transparency during the resolution of the application.
[41]
Recognizing
the difficulties of the present political situation, the Court will order the
underlying matter to proceed on an expedited basis with a precise schedule for
perfecting the application. Furthermore, the matter will proceed as a specially
managed proceeding, pursuant to the authority derived from Rule 384 of the Rules
of the Court.
[42]
Also, in
the interests of justice and good governance, the Court shall order the present
Reasons for Order to be publicized widely, in any matter deemed appropriate.
[43]
Also, the
Court will order that the Respondent Charlene Joe and Respondent David Clayton
be served through their e-mail addresses, as they appear in a letter from Mr.
Rolf, dated February 2, 2011.
[44]
Determination
of costs shall be resolved with the underlying application for judicial review.
ORDER
THIS COURT ORDERS that:
1.
Matters
such as day-to-day administration, the provision of essential services,
ordinary payable accounts, management of administrative staff, urgent acts to
safeguard the rights of the membership, subscribing of insurance, and like
matters, shall be decided upon by the Council, as elected on October 2, 2010
and in accordance with the Lower Nicola Indian Band – Chief and Council Policy
and Guidelines;
2.
The three (3)
named “Councillors” shall receive advance notice of every Council meeting and
be allowed to be present and free of harassment or persecution in their
presence at Council meetings. They shall have a limited right of participation
in these matters, but may not cast a vote in the matters noted above in
paragraph 33 and like matters;
3.
Important
matters that address the LNIB membership’s long-term interests are to be
decided by a Special Council constituted of the Council elected on October 2,
2010, as well as the three (3) “Councillors” named by the Elders Council;
4.
The
matters that were determined by Council between October 2, 2010 and the present
date are to be redetermined accordingly with the present Order;
5.
The Respondents
Charlene Joe and David Clayton be served through their e-mail addresses, as they
appear on a letter from Mr. Rolf, dated February 2, 2011;
6.
The
present Reasons for Order and Order are to be publicized widely, in any matter
deemed appropriate;
7.
The proceeding
shall continue as a specially managed proceeding;
8.
The
following schedule shall apply:
(a)
The
Application for Judicial Review is to be heard in Vancouver, British Columbia, on March 22 and March
23, 2011, on an expedited basis;
(b)
The
evidence filed in the motion for the interim stay and injunction shall be
evidence applicable to the application for judicial review;
(c)
The
Applicant’s shall perfect their Rule 306 record by serving any further
affidavits or documentary exhibits by Friday, February 11, 2011;
(d)
The
Intervener shall serve any affidavits or documentary exhibits in explanation of
the Council of Elders’ record by Wednesday, February 16, 2011;
(e)
The
Respondents shall each perfect their Rule 307 records by serving any further
affidavits or documentary exhibits by Friday, February 18, 2011;
(f)
Without
further order of the Court, there shall be no cross-examinations on affidavits;
(g)
The
Applicant shall serve and file their Rule 309 record by Tuesday, February 22,
2011;
(h)
The
Respondent Coutlee shall serve and file her Rule 310 record by Wednesday, March
2, 2011, which record shall contain their written representations and any
affidavits or documentary exhibits relied upon that are not already contained
in the Applicant’s record;
(i)
The
Respondents Clayton and Joe shall serve and file their Rule 310 records by
Wednesday, March 9, 2011;
(j)
The
Intervener may serve and file an Intervener’s record by Wednesday, March 16,
2011, which record shall contain its written representations in accordance with
this Court’s Order granting intervener status and any affidavits or documentary
exhibits that it relies upon not already contained in the Applicant’s or
Respondent’s records;
9.
This Order
may be amended by a judge of this Court or the person selected by the Chief
Justice to case manage this proceeding; and
10.
Costs to
follow.
“Simon
Noël”
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