Date:
20110318
Docket:
T-16-11
Citation:
2011 FC 334
[ENGLISH
TRANSLATION]
Ottawa, Ontario, March 18, 2011
PRESENT:
The Honourable Mr. Justice Scott
BETWEEN:
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DENIS LANDRY, GAÉTAN
LANDRY, CHRISTIAN TROTTIER, LUCIEN MILLETTE, DAVE LEFEBVRE
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Applicants
Moving Parties
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and
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YVON SAVARD, LOUISE
BERNARD, DIANE M’SADOQUES ET RAYMOND BERNARD, NAYAN BERNARD, KEVEN BERNARD,
JACQUES BERNARD, RÉJEAN BONNEVILLE, JULES BERNARD CATHERINE BERNARD AND
NELSON LEFEBVRE
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Respondents
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REASONS
FOR ORDER AND ORDER
I. THE
APPLICATION AND THE FACTS
[1]
This
is an application for an interim injunction submitted by applicants Denis
Landry, Gaétan Landry, Christian Trottier, Lucien Millette and Dave Lefebvre,
hereinafter the applicants, all members of the Conseil de bande des Abénakis de
Wôlinak, who also filed an application for judicial review on January 6,
2011, against a decision by the Comité d’appel designated for the general
election on November 14, 2010. The decision by the Comité d’appel on
December 21, 2010, allowed the appeals filed by defeated candidates
Raymond Bernard, Nayan Bernard, Keven Bernard, Réjean Bonneville, Jacques Bernard,
Jules Bernard, Catherine Bernard, and Nelson Lefebvre, annulled the election on
November 14, 2010, and ordered that new elections be held as soon as
possible.
[2]
In
light of the provisions of the Code électoral des Abénakis de Wôlinak, more specifically
article 8.8, 3rd paragraph, in fact, the Comité d’appel’s
decision kept the outgoing council in their positions on an interim basis. The
council is composed of the following people: Raymond Bernard, chief, and the
following councillors: Nayan Bernard, Keven Bernard, Christian Trottier and
Lucien Millette to deal with ongoing management and administration issues.
[3]
The
applicants have appeared many times before this Court since January 6. On
March 1, Justice Johanne Gauthier gave instructions to hear a motion by
the applicants and ordered that a deadline be set so that the application for
review would be heard on April 20, 2011, in Montréal.
[4]
On
March 7, Gauthier J. made an initial order in which she disposed of
cross-motions filed by the respondents, deferred an initial application for sine
die interim relief, given the discussions between the parties, and set a definitive
deadline that would lead to the hearing for the application for judicial review
on April 20, 2011, in Montréal.
[5]
On
March 11, the applicants filed a new motion with the Court for interim
relief in order to, inter alia, prevent a meeting of the Conseil de
bande from being held as scheduled for Monday, March 14, on the ground
that the agenda included adopting resolutions other than simple administrative
resolutions.
[6]
After
hearing the parties, Justice François Lemieux made an interim order suspending
the meeting of the Conseil de bande until the tabling of the resolutions at
issue and the hearing of the motion for interim relief that is now before this
Court.
II. ORDER SOUGHT
[7]
Through
an interim application filed under the terms of sections 8, 54, 55, 359
and 373 et seq. of the Federal Courts Rules, the applicants are
seeking an order that aims to:
(a) PROHIBIT
respondents Raymond Bernard, Nayan Bernard and Keven Bernard, as members of the
outgoing Conseil de bande who are still in power following the decision by the Comité
d’appel on December 21, 2010, from adopting any resolution other than for
simple administration, until the Court determines the basis of the application
for judicial review or if necessary, until new elections are held and a new
Conseil de bande enters office;
(b) EXEMPT the moving
parties from any security;
(c)
ORDER
enforcement, notwithstanding any appeal;
(d)
ANY
other order that the Court deems appropriate or fair; and
(e)
the
COSTS of the motion.
[8]
At
the start of the hearing, the applicants applied for leave to amend the
findings sought in its Order so that Christine Trottier and Lucien Millette
could be added as persons identified in the sought prohibition. Counsel for the
respondents did not object and the Court authorized the amendment.
[9]
With
leave from the Court, counsel for the respondents amended paragraph 6 of
its written representations in order to substitute the word [translation] “entity” with “moral person”.
[10]
During
the hearing, counsel for the applicants applied for leave to amend for a second
time to the findings in its Order so as to include a specific reference to
resolutions 46 to 78, except for resolution 69. Counsel for the
respondents objected and the Court took it under advisement.
[11]
In
order to succeed with their motion, the applicants must establish that there is
a serious question to decide upon in the underlying application for judicial
review, that they will suffer irreparable harm if the application for interim
relief is not granted and the balance of convenience is in favour of issuing
the order sought. See RJR-MacDonald Inc. v Canada (Attorney General),
[1994] 1 S.C.R. 3. The test in MacDonald has been applied many times by
this Court in electoral disputes among Indigenous peoples.
[12]
Counsel
for the respondents argues at length that the applicant failed to assign one of
the respondents identified by their order, that being the Conseil de bande. In
that matter, he maintains that the resolutions at issue can only be adopted by
the Conseil and not by the respondents, even though he admits that they
constitute a majority of the Conseil de bande, that the respondents have a
quasi-fiduciary duty as members of the Conseil de bande, and that their
personal interests may easily differ from the interests of the Conseil as an
entity.
[13]
Counsel
for the respondents reminds the Court that in most decisions, we find both
individuals who are sitting on the council and the Conseil de bande itself as
parties to the litigation, and that the applicants erred in their efforts
because they seek to have an order made against an entity that is not party to
the litigation.
III. EXISTENCE OF A
SERIOUS QUESTION
[14]
The
Court is satisfied that the applicants raised serious questions in the
underlying application for review, more specifically regarding allegations of
irregularities. In this application for interim relief, this is to temporarily
ensure good governance, that being until the Court disposes of the application
for judicial review, in the best interests of a community beyond internecine
strife. The affidavit from Christian Trottier tells of a notice of meeting
issued at the chief’s request, and draft resolutions that suffer from a lack of
transparency and that deviate from the simple mandate of ongoing management and
administration. The Court is satisfied that a serious question exists.
IV. THE BALANCE OF
CONVENIENCE
[15]
There
is no doubt that article 8.8, paragraph 3 of the Code électoral de la
Bande des Abénakis de Wôlinak aims to maintain the status quo following a
disputed election and restricts the outgoing council members, who are once
again sitting as an exception, to simple acts of ongoing administration and
management. An overview of the resolutions that have been proposed to be
adopted by the respondent members in the litigation leads us to find that it
may in fact be followed by irreparable harm, as described by this Court’s case
law in similar disputes. The decision by Noël J., made on February 8
in Lower Nicola Indian Band v Joe [2011] FC 147 is very appropriate in
the circumstances, particularly when it deals with “irreparable harm”, about
which it details at para 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
be compensated through damages (White v E.B.F. Manufacturing Ltd., 2001
FCT 1133 (FC) at para 13).
[16]
The
evidence submitted by the applicants regarding irreparable harm appears
completely convincing to me, particularly regarding what they show for
resolutions 059, 060 070, which seek to amend the band code and thus the
status quo.
[17]
In
its assessment of the balance of convenience, the Court must consider the
public interest, which in this case must be assessed in light of the greater
needs and interests of the Abénakis de Wôlinak. The balance of convenience therefore
brings us to establish which of the parties to the litigation will suffer the
greatest prejudice.
[18]
Presently
in the community, there are various factions that have opposed each other for
some time. That situation can only be aggravated by decisions that will have a
major impact on the community’s interests in the short and medium term, and
that is why any resolutions that can be adopted will need to be limited to acts
of ongoing administration, without changing either the signing authorities or
making any administrative changes of importance.
[19]
By
granting an order for interim relief, the Court ensures that at the very least,
there will be no decisions made by the Conseil de bande that irreparably
changes the status quo. Dismissing the application would allow the Conseil to
destroy that status quo by the time that the Court addresses the basis of the
issue. The balance of convenience therefore favours the issuing of an order.
[20]
Under
Rule 104 of its rules of practice, at any time, the Court may “order that a
person who ought to have been joined as a party or whose presence before the
Court is necessary to ensure that all matters in dispute in the proceeding may
be effectually and completely determined be added as a party …”.
[21]
In
this case, the Court intends to order that as a party to this interim relief
litigation, the Conseil de bande des Abénakis de Wöjinak shall be constituted
as a federal board, commission or other tribunal under section 2 of the Federal
Courts Act, R.S.C., 1985, c. F-7, under which a federal board,
commission or other tribunal “means any body, person or persons having,
exercising or purporting to exercise jurisdiction or powers conferred by or
under an Act of Parliament or by or under an order made pursuant to a prerogative
of the Crown (…)”. The applicant’s application for interim relief is therefore
amended in that regard. As part of this application, since the respondents
effectively make up the majority of the Conseil de bande, I do not see how that
would prejudice them. The Court also ensures that the interests of all parties
identified by the Order will be adequately protected. Moreover, the application
for amendment presented by counsel for the applicants to amend the findings of
the Order is dismissed.
V. CONCLUSION
[22]
Being
satisfied that the applicants have met the criteria in MacDonald, above,
the Court is allowing the application for interim relief and makes the
following order.
ORDER
THE COURT ORDERS the
following:
1. THAT the
application for interim relief be amended to include the Conseil de bande des
Abénakis de Wöjinak as a party to this application;
2. THAT the
outgoing Conseil de bande des Abénakis de Wôlinak, which is still in office
following the decision on December 21, 2010, be prohibited from adopting any
resolution other than for simple administration, until this Court rules on the
basis of the application for judicial review or, if necessary, until new
elections are held and a new Conseil de bande takes office;
3. That the
applicants are exempted from any security; and
4. That this order be enforced, any appeals
notwithstanding.
With costs in the cause of the
application for judicial review.
“André
F.J. Scott”
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