Date: 20110113
Docket: T-2089-10
Citation: 2011
FC 37
Vancouver, British
Columbia,
January 13, 2011
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
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COUNCILLOR MIKE ORR and COUNCILLOR CECILIA FITZPATRICK
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Applicants
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and
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FORT McKAY FIRST NATION
CHIEF JIM BOUCHER,
COUNCILLOR RAYMOND POWDER, and COUNCILLOR
DAVID BOUCHER
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Respondents
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REASONS FOR ORDER AND ORDER
UPON
the applicants’
motion for an interim injunction pursuant to Rule 373 of the Federal Courts
Rules, SOR/98-106 to compel the Fort McKay First Nation to adjourn
the special meeting set for January 18, 2011 for a vote to remove Councillors
Mike Orr and Cecilia Fitzpatrick, to restore them in their position as Councillors,
to provide notice of all meetings of Fort McKay First Nation Council and to pay
them their salary as duly elected Councillors;
UPON reviewing all the material
filed by the parties including the additional affidavit of Crystal Topilko,
filed with leave of the Court and upon consent of the respondents, and having
considered the representations of their counsel, which in this case are
particularly important given that the applicants’ counsel had to deal with new
issues raised by the respondents’ evidence;
UPON noting that the meeting
scheduled for January 18, 2011 only concerns the removal of Mr. Orr given
that Ms. Fitzpatrick has apparently resigned from her position by way of a
letter dated December 14, 2010. The applicants’ counsel advised the Court that
Ms. Fitzpatrick may shortly file evidence in response to the affidavit of
Philip Peddie, the Band administrator, who states that she had confirmed to him
that she would give instruction to her counsel to discontinue the proceedings
on her behalf. Be that as it may, at this stage, it is clear that the vote
scheduled to take place on January 18, 2011 does not concern
Ms. Fitzpatrick. Also, in the absence of evidence to the contrary on the
record before me, the Court cannot make any order respecting Ms. Fitzpatrick’s
status;
UPON considering that to succeed,
Mr. Orr has to establish that he meets the tripartite test set out in RJR-MacDonald
Inc v. Canada (AG), [1994] 1 S.C.R. 311: (i) that there is a serious issue to
be tried; (ii) that he would suffer irreparable harm if the relief sought is
not granted; and (iii) that the balance of convenience is in his favour;
UPON considering that Mr. Orr was
duly elected Band Councillor on February 25, 2008 for a four-year
term. Pursuant to the applicable Election Code, particularly section 101, a Chief
or Councillor can only be removed or suspended from his or her
functions (presumably this would also normally apply to the suspension of the Chief
or Councillor’s pay) by a vote of the electors conducted at a special meeting
at which a majority of electors have attended (see section 103 of the Election
Code). Such process can only be set in motion by a valid resolution of the Council
which includes the particulars of the cause for removal or suspension including
cause on the basis set out in sections 101.3.1 or 101.3.7, or a petition
setting out the grounds on which the removal or suspension is sought and
meeting the requirements in section 102 of the Election Code. In this
particular case, no petition was filed and the process has been put in motion
by a resolution of the Council dated December 13, 2010 (as amended on
December 14, 2010 to include Ms. Fitzpatrick);
[1]
It also
appears that two other Band Council Resolutions (BCRs) were signed on October
26, 2010 and November 25, 2010 respectively by the Chief and two Band
Councillors. The first one purports to cancel the Shareholder Trust Agreement
between Mike Orr and Cecilia Fitzpatrick and the First Nation for the
corporations listed in the said BCR while the second states that “the salaries,
benefits and emoluments of councillors Orr and Fitzpatrick are discontinued
effective immediately” (i.e. as of November 25, 2010). Also, the said
Resolution states that “where necessary and appropriate and in the best
interests of the First Nation, the Chief and Council will hereby continue to
conduct business of the Council without the participation of councillors Orr
and Fitzpatrick”.
[2]
Although
the BCR of November 25, 2010 expressly states that there was a quorum of the Chief
and Council of the Fort McKay First Nation at “a duly convened meeting”, Mr.
Peddie in his affidavit affirms that there was no meeting of the Chief and
Band Council on that date or on October 26, 2010. Accordingly, it is not
disputed that Councillors Orr and Fitzpatrick were not notified of the meetings
referred to in the said BCRs. That said, the respondents’ counsel offered no cogent
explanation as to how these BCRs could be validly adopted without being placed
before the Chief and Band Council at a properly convened meeting. At this
stage, there is no evidence that a general system of rules dealing with such
matters has been adopted, and there is nothing in that respect in the Election
Code. Thus, in accordance with section 105.1 of the Election Code, the Council
was to govern its conduct in accordance with the Indian Band Council
Procedure Regulations, CRC, c. 950 (see particularly ss. 12 and 13 of these
Regulations which appear to require that a BCR be presented and placed
before the Council at a meeting). See also s. 19 dealing with votes involving a
conflict of interest.
[3]
Moreover,
no explanation – let alone a cogent one – was provided as to why, if the
November 25, 2010 BCR is considered proper by the Band administrator, it
was not applied as per its terms. In effect, Mr. Peddie states in his affidavit
that Councillors Orr and Fitzpatrick’s pay was only suspended as of December
13, 2010, the date of the BCR commencing the process for their removal.
[4]
In
accordance with the Indian Band Council Procedure Regulations, notice of
all meetings is to be given to all Councillors.
[5]
The Court
is satisfied that there are serious issues to be determined in respect of the
validity of these two BCRs. At this stage, the Court can only conclude that these
BCRs could not be validly adopted without being placed before the Chief and
Band Council at a duly convened meeting.
[6]
With
respect to the December 13, 2010 meeting, although in his affidavit Mr. Orr
states that he did not receive notice of the said meeting, it appears from the
affidavit of Mr. Peddie that Mr. Orr was actually notified by way of an email, and
that, in fact, he and Councillor Fitzpatrick did attend the meeting or at least
part thereof.
[7]
It appears
from the draft minutes of the December 13, 2010 meeting that shortly after the beginning
of that meeting Mr. Orr and Ms. Fitzpatrick were asked to excuse themselves to
allow the other Councillors and the Chief to discuss a resolution seeking their
removal. There is no indication that they were given any opportunity to be
heard before the decision was actually taken by the Chief and the two other
Councillors to seek a vote by the electors. In fact, the draft minutes reflect
that the two Councillors were simply informed that a decision had been taken in
that respect.
[8]
The vote
is scheduled to take place simultaneously in three locations and there is no
mechanism in place to provide Councillor Orr an opportunity to be heard by the
electorate before the vote proceeds.
[9]
For Mr.
Orr, this means that the matter of his removal from his electoral office will
be decided without him having had an opportunity to be heard orally or in
writing. This, the applicant argues, is a clear breach of the principles of
procedural fairness that should apply given the importance of this decision and
its impact on him.
[10]
According
to the respondents, the Election Code does not provide for anything in that
respect. Thus, there is simply no duty to give such an opportunity to Mr. Orr.
In any event, they say that as a politician, Mr. Orr has had ample opportunity and
means to convey his message to the electorate prior to the vote.
[11]
The Court
cannot agree that the issue is that simple. The Supreme Court of Canada in Baker
v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817 set out the various criteria to be used to determine the
extent of the duty to act fairly in any given circumstance. The process chosen
by the decision-maker is only one of the elements to be examined by the Court,
as is the nature of the decision – a purely discretionary one versus a
quasi-judicial decision – to use the terminology adopted by the respondents’
counsel.
[12]
Although
the content of the duty to proceed fairly is flexible and depends on the context,
the most basic requirements are that of notice and an opportunity to
make representations.
[13]
In Sparvier
v. Cowessess Indian Band No. 73 et al, [1993] 3 FC 142, [1993] FCJ No 446
(TD), Justice Rothstein (now a member of the Supreme Court of Canada) stated:
47 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.
[14]
These
principles have been applied consistently to merely administrative decisions in
the context of removal or suspension of a Chief or Band Councillors (e.g. Duncan v. Behdzi Ahda
First Nation,
2003 FC
1385 at paras. 18-23; Catholique v. Lutsel K'e First Nation, 2005 FC 1430 at paras.
53-57; Prince v. Sucker Creek First Nation #150A, 2008 FC 1268 at paras.
39 – 42; Metansinine v. Animbiigoo Zaagi’igan Anishinaabek First Nation,
2011 FC 17 at para. 22)
although none of the cases cited directly involved a final decision to be taken
by the electorate, there is clearly a serious issue in that respect which will
need to be determined by the judge hearing the merits of the application. In
view of the foregoing, the Court is satisfied that Mr. Orr meets the first part
of the test. In fact, he has established a strong prima facie case. I
should note here that this Court has not looked at the merits of the grounds
set out in the December 13, 2010 BCR for it is not its role in these proceedings.
[15]
Turning
now to the second element, irreparable harm, Mr. Orr argues that his position
is a political position and that the law does not provide for remedies for loss
of an elective office. Thus, his effective suspension as a result of the
November 25, 2010 vote and his eventual wrongful removal on January 18, 2011, will
constitute irreparable harm, as found by Justice Tremblay-Lamer in Gabriel v.
Mohawk Council of Kanesatake, 2002 FCT 483 at paras. 26 to 30.
[16]
There are
also other concerns regarding the irreparable harm to be suffered by the
applicant were he to be removed from office (Sound v. Swan River First Nation, 2002 FCT 602 at para. 21;
Prince v. Sucker Creek First Nation #150A, 2008 FC 479 at paras. 31-32).
[17]
The
respondents submit that this motion is premature given that the majority
attendance of electors for the vote, as required by the Election Code, may not
be met or that the electors may choose not to remove Councillor Orr. In that
sense, the prejudice alleged is speculative.
[18]
The Court
cannot agree. The position of Councillor is one of prestige (although not as
much as that of a Grand Chief as discussed in Gabriel, above, at paras.
28-29). The holding of a vote on a resolution whose legality is seriously
challenged and where electors are asked to assess the validity of the grounds
set out in the December 13, 2010 BCR without the benefit of an explanation from
the person concerned will certainly affect the reputation and prestige of Mr.
Orr, even if he is not effectively removed.
[19]
As mentioned
by the Supreme Court of Canada in RJR-MacDonald, above, at para. 59, “irreparable
harm” refers to the nature of the harm rather than its magnitude.
[20]
The Court
is satisfied that a vote on January 18, 2011 in the particular circumstances of
this case will cause some irreparable harm to Mr. Orr regardless of its
outcome.
[21]
Does the
balance of convenience favour the granting of the remedy sought, particularly
the adjournment of the January 18, 2011 special meeting? Here the Court must
also consider the best interests of the Band members (public interest) who
should not be asked to vote on a removal when there is a strong prima facie
case that the process leading to such a vote is flawed. This especially so when
one considers that if Councillor Orr is removed by vote and ultimately
reinstated by the Court hearing the judicial review on the merits, this will
put in jeopardy the validity of all decisions taken by the Council after this
vote. As is apparent from the evidence filed by both sides, there are important
issues to be addressed by the Council such as a potential forensic audit and
the appointment of arbitrators to deal with employee grievances filed more than
a year ago.
[22]
The Court
also considered what the situation would be if Councillor Orr were to continue
his functions for a short while. It is apparent that the Band Council has put
in much effort to foster harmony within the Council and that it has mentioned
important issues must be dealt with by a Council which is bound by the Election
Code to work on the consensus (unanimity) basis. The Court notes, however,
that pursuant to section 92.3 of the Election Code, in circumstances where the
Council is unable to arrive at a consensus on a particular issue, it may bring
the issue to the membership at its next meeting. Section 93.1.1 provides that
quarterly general meetings are to be held and that special meetings can be held
as necessary.
[23]
The
respondents put much emphasis on the need to respect the democratic process
already set in motion, but is fairness not an essential part of any democratic
process?
[24]
Finally, the
Court should favour status quo.
[25]
Having
weighed all the factors the Court is satisfied that the balance of convenience
favours the applicant Mr. Orr. The Court concludes that the test has been met
for the adjournment of the January 18, 2011 meeting.
[26]
Mr. Peddie
states that there is no need for the Court to deal with notices of meetings
given that Mr. Orr has already received notice of the next meeting scheduled
for January 19, 2011. Given that Mr. Peddie also confirms the suspension of
pay, it is not clear how one would expect Councillor Orr to fulfill his duty.
[27]
Finally,
it is evident that this application must be resolved as expeditiously as
possible in the interests of not only the parties, but the Band as a whole. The
Court finds that it is appropriate to continue this proceeding as a specially
managed proceeding and on an expedited basis. In this context, the parties
should file a proposed joint schedule for all the steps necessary to prepare
this file for hearing so that an early date for a hearing can be fixed. This should
include amendments of the notice of application to reflect the true issues
involved. Finally, the applicants sought leave pursuant to Rule 302 so that a
judicial review properly proceeds in respect of the three BCRs referred to
herein.
ORDER
THIS COURT ORDERS that:
1. The
Chief and Band Council of the Fort McKay First Nation shall adjourn the special
meeting scheduled for January 18, 2011.
2. As
an interim measure, Councillor Orr shall continue to perform his duties as Councillor
with pay and to receive the notices as provided for in the Election Code and
the applicable regulations for all meetings of the Chief and Council.
3. This
proceeding shall continue as a specially-managed proceeding and on an expedited
basis.
4. On
or before January 30, 2011, the parties shall file a proposed joint schedule as
well as dates for an early hearing.
5. Leave
is granted pursuant to Rule 302.
6. Costs
in the cause.
“Johanne
Gauthier”
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