Date: 20110405
Docket: T-515-11
Citation: 2011 FC 420
Ottawa, Ontario, April 5,
2011
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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CHIEF CAROLYN BUFFALO, GARRY
LOUIS AND LEONARD STANDINGONTHEROAD, ON THEIR OWN BEHALF AND ON BEHALF OF THE
MEMBERS OF THE
MONTANA FIRST NATION
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Applicants
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and
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REMA RABBIT,
BRADLEY RABBIT AND
GERALDINE HILL
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Respondents
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REASONS FOR ORDER AND ORDER
Introduction
[1]
On
March 28, 2011, the applicants, Carolyn Buffalo, Chief of the Montana First
Nation, Garry Louis and Leonard StandingontheRoad, Councillors of the Montana
First Nation, filed an application for judicial review in respect of a decision
by the Montana First Nation Council suspending Chief Buffalo and Councillor
StandingontheRoad. This decision resulted from a vote by Councillors Bradley
Rabbit and Rema Rabbit during a Council meeting held on January 7, 2011. The
result of this vote was communicated to the Chief and Councillor in a letter
dated January 8, 2011.
[2]
Following
the suspension, a referendum was held on March 16, 2011 and an election was
scheduled to take place Friday, April 1, 2011.
[3]
The
applicants filed a Notice of Motion pursuant to Rule 359 of the Federal
Courts Rules, SOR/98-106 (the Rules) on March 28, 2011 seeking an interlocutory
injunction and requesting an expedited hearing on March 31, 2011 pursuant to
Rules 32, 35(2) and 373. The applicants raised a number of issues including:
a.
that the
purported suspension of the applicant Chief Carolyn Buffalo as Chief and the
extension of such suspension is illegal and ultra vires for lack of
procedural fairness and for failure to comply with the Montana Tribal
Council Regulations;
b.
that the
purported general election of Chief and Council is illegal and ultra vires
for failure to comply with the Montana Tribal Council Regulations.
[4]
Given
the expedited timeline, counsel for the respondents sought an adjournment on March
30, 2011.
[5]
A
case management conference was ordered by the Court on March 30, 2011.
Following which, the Court provided an extension to the respondents. The hearing
for the motion for an interlocutory injunction was re-scheduled for Friday,
April 1, 2011, upon confirmation that the election would not take place on that
day as originally planned but would be postponed to a later day. By letter
dated March 30, 2011, counsel for the respondents confirmed that the elections
were indeed postponed and re-scheduled to take place on April 8, 2011.
[6]
The
motion at issue for an interlocutory injunction was accordingly heard via teleconference
on April 1, 2011.
Background
[7]
The
Montana First Nation in the Province of Alberta is governed
by Chief and Council, specifically one Chief and four Councillors, all of whom
are required to serve a term of three years.
[8]
At
the last general election held on October 8, 2008, Carolyn Buffalo was elected
Chief of the Montana First Nation and Rema Rabbit, Bradley Rabbit, Garry Louis
and Leonard StandingontheRoad were elected Councillors to the Council.
[9]
In
December 2010, Chief Buffalo authorized Councillor StandingontheRoad to serve
as Acting Chief in her absence in order to meet and discuss a potential
arrangement between the Nation and an individual by the name of Jason Lucas.
Upon Chief Buffalo’s return, Councillor StandingontheRoad advised her that an
agreement had been reached to use the Nation’s facilities to store a large
quantity of tobacco. At that time, the cigarettes were already in storage in a
Quonset.
[10]
On
or about January 5, 2011, Chief Buffalo informed the Royal Canadian Mounted
Police (RCMP) that there had been a break-in and theft of some of the stored cigarettes.
The RCMP attended to investigate and when they observed the large quantity of
cigarettes, reported the matter to the Alberta Gaming and Liquor Commission
(AGLC). The AGLC seized the cigarettes and issued a press release announcing
the seizure. The cigarettes did not bear the necessary provincial marking to be
sold in Alberta.
[11]
Following
the seizure, a meeting of the membership of the Montana First Nation was held
on January 6, 2011.
[12]
On
the morning of January 7, 2011, Chief Buffalo received a brief text message on
her cell phone saying that there was to be a debriefing concerning the events
of January 6, 2011. Chief Buffalo was unable to attend the debriefing as she
was accompanying her handicapped child to the hospital.
[13]
During
the meeting, Councillor Rema Rabbit moved a motion to temporarily suspend Chief
Buffalo and Councillor StandingontheRoad from their respective offices of Chief
and Councillor. Councillor Bradley Rabbit seconded the motion.
[14]
Shortly
after the meeting, Chief Buffalo was informed by
Councillor Bradley Rabbit that a vote had been held, resulting in the suspension
from office of both herself and Councillor StandingontheRoad.
[15]
Subsequently,
Chief Buffalo received a letter dated January 8, 2011 confirming that she had
been suspended from her position as Chief until further notice for having
brought onto the Montana Reserve significant quantities of contraband cartons
of cigarettes for resale or delivery purposes. The letter also indicated that
she had breached section 22.1 and several sub-sections of section 22.2 of the Montana
Tribal Council Regulations (the Regulations). Councillor StandingontheRoad
received a similar letter on the same day.
[16]
By
letter dated January 10, 2011, Councillor Garry Louis advised the Council
members that he was rescinding his vote on the suspension of Chief Buffalo and
Councillor StandingontheRoad.
[17]
On
February 8, 2011, Chief Buffalo received another letter signed by Councillors
Rema Rabbit and Bradley Rabbit, advising her that her suspension had been
extended until further notice. This second suspension was not supported by
Councillor Garry Louis. By the end of February, the Nation’s administration
building locks were changed.
[18]
On
February 11, 2011, both Chief Buffalo and Councillor StandingontheRoad
delivered letters to all the other members of the Council appealing their
suspensions on the basis that they were invalid.
[19]
By
notice dated March 2, 2011, signed by George Addai, Interim Administrator, the
members of the Nation were advised that a referendum would take place in order
to have an election for all positions on the Council including that of the
Chief. The notice also advised that the election would be held in accordance
with the Montana First Nation election laws and regulations.
[20]
The
respondent, Geraldine Hill, was the Electoral Officer for the referendum held
on March 16, 2011. The election was scheduled to take place on April 1, 2011
but, as explained above, the election has been postponed and it has now been
re-scheduled to take place on April 8, 2011.
The Test for Injunctive Relief
[21]
The
tripartite test to apply in determining whether the applicants are entitled to
injunctive relief was established by the Supreme Court of Canada in RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 S.C.R. 311 and Manitoba (Attorney General) v Metropolitan
Stores (MTS) Ltd., [1987] 1 S.C.R. 110. The applicants must therefore establish
the following:
(a) That there
is a serious issue to be tried on the underlying application for judicial
review (the applicant must have a prima facie case);
(b) That the
applicant will suffer irreparable harm not compensable in damages if an
interlocutory injunction is not granted; and
(c) That the
balance of convenience favours the granting of the relief sought.
[22]
The
tripartite test is conjunctive, and the applicants accordingly have to satisfy
all three elements before they will be entitled to relief.
Analysis
[23]
By
this motion, the applicants seek an interlocutory injunction to preserve the status
quo of the Nation’s governance, i.e. governance by the existing elected
Chief and Council, pending resolution of the underlying application for
judicial review.
(a) Is there a serious
issue to be tried?
[24]
The
applicants have identified a number of issues which they argue meet the low
threshold necessary to satisfy the serious issue component of the RJR-MacDonald
test. In particular, the applicants maintain that there is an issue of a breach
of natural justice in the circumstances. The applicants allege that Chief
Buffalo and Councillor StandingontheRoad were not entitled to a fair hearing
and basic rights - such as a notice and a right to make representations. More
particularly, the notice provided to Chief Buffalo prior to the January 7, 2011
meeting is at issue. Further, the decision taken at that meeting led to drastic
consequences for both Chief Buffalo and Councillor StandingontheRoad: they were
both ultimately suspended indefinitely without pay.
[25]
Against
this background, the Court is cognizant that the duty to act fairly is a
principle that has been applied consistently in the context of the removal or
suspension of a Chief or a Band Councillor (Orr v Fort McKay First
Nation,
2011 FC 37, [2011] FCJ No 47).
[26]
Further,
it is alleged that sections of the Regulations - i.e. sections 24.1 and 24.2 -
were not properly followed and that some requirements including ‘’the unanimous
opinion of the Council members’’ were not met.
[27]
Finally,
there is contradicting evidence as to whether all eligible voters received
proper notice of the referendum in order to set the election.
[28]
In
these circumstances, the Court is of the view that there is clearly a serious
issue which will have to be determined by the judge hearing the merits of the
application for judicial review. The Court is therefore satisfied that the
applicants have met the first part of the test in establishing that there is a
strong prima facie case.
(b) Will the applicants
suffer irreparable harm?
[29]
The
applicants claim that they will suffer irreparable harm if an interlocutory
injunction is not granted. It is important to recall that the Courts have held
on many occasions that the threshold of irreparable harm is very high since an
injunction consists of an extraordinary remedy. Irreparable harm is harm that
cannot be quantified in monetary terms, or which cannot be cured by an award of
damages (RJR-MacDonald at para 59). The burden is on the party seeking
the injunction to provide clear and non-speculative evidence that irreparable
harm will follow if the motion is not granted.
[30]
As mentioned by the Supreme Court of Canada in RJR-MacDonald,
irreparable harm refers to the nature of the harm rather than to its magnitude.
[31]
The
applicants assert that if an interlocutory injunction is not granted, not only will
this result in the disruption of the rule of law upon the governance of the
Montana First Nation, but it will also result in the loss of the applicants’
prestige, reputation and stature within the community, notwithstanding the
erosion of their electoral terms. This, the applicants claim, cannot be
compensated in damages.
[32]
Furthermore,
the applicant, Chief Buffalo, claims that she is suffering from irreparable harm
due to her inability to perform her duties as Chief and because of her loss of wage
and benefits. She contends that her loss of prestige cannot be compensated by
damages and that she will be unable to recover the wage loss she has suffered
if successful with a judicial review. She adds that contrary to the
respondents’ allegations, there is uncertainty as to whether or not her loss of
prestige and stature was due to the events leading up to her suspension or
because the respondents misinformed the members of the Nation that she had acted
in an illegal manner.
[33]
As
for the respondents, they submit that any irreparable harm that the applicants
have suffered to their reputations and their ability to carry on elected duties
was a direct result of their actions regarding the storage of tobacco on the
reserve. The Court cannot agree with the respondents in this regard.
[34]
The
position of Chief is one of high prestige. Indeed, the role of a Chief is to
provide opinion and direction on policies and issues affecting the community for
which they have been elected by other members of the Nations (Gabriel v
Mohawk Council of Kanesatake, 2002 FCT 483, [2002] FCJ No 635, at para 29).
In Gabriel, Justice Tremblay-Lamer held that "the jurisprudence
makes it clear that the office of Chief is political and that the law
concerning wrongful dismissal does not provide for remedies for loss of
elective office" (see also Frank v Bottle, [1993]
FCJ No 670,
65 FTR 89, at para 27-28).
[35]
The Court is of the view that the position of Councillor is
also a position of prestige (Orr) and that similar considerations accordingly
apply when considering the suspension of the applicant StandingontheRoad.
[36]
In this case, the Court is therefore satisfied that a vote
on April 8, 2011 would cause some irreparable harm to Chief Buffalo and
Councillor StandingontheRoad. If an injunction were not granted and the
applicants were to succeed with the underlying application for judicial review,
there would in fact be a disruption of the governance of the Nation and the inevitable
loss of prestige could not be compensated in damages (Gabriel).
(c) Does the balance of convenience favour the applicants?
[37]
The
applicants assert that the balance of convenience lies with them in preserving
the status quo governance of the Montana First Nation with their
reintegration to their positions. As mentioned by Justice Blanchard in Duncan v Behdzi Ahda First Nation Band (Council), 2002 FCT 581, [2002] FCJ No 764, when assessing the balance of convenience, the Court must take
into account the needs and best interest of the Nation in question. Here, the
Court must consider the best interest of the members of the Montana First
Nation.
[38]
Should members of the Montana First Nation
be asked to vote in an election when there is a strong prima facie case
that the process leading to the suspension of Chief Buffalo and Councillor
StandingontheRoad may be flawed? The Court does not believe so.
[39]
In Francis
v Mohawks of Akwesasne Band of Indians, 62 FTR 314,
[1993] FCJ No 369, Justice M. Noël (as he then was) determined that it was more favourable to grant
the motion for interlocutory injunction and prevent the holding of the election
until its legality was confirmed. In his decision, Justice Noël explained the
importance of preserving the status quo of a Nation. The Court adopts
his observations mutatis mutandis:
[…] The Council
charged with the responsibility of governing that community is already in an
uncertain and somewhat chaotic state which, in my view, must not be further
exacerbated.
By granting an interim
order prohibiting the holding of the by-election until the matter of its
legality is resolved, I would, from the respondents' point of view, temporarily
suspend the holding of validly called elections. On the other hand, by granting
the interim order, I would preserve the status quo until the issue of the
propriety of the by-election is determined. It seems to me that while the
present state of affairs is obviously less than desirable, the one which would
result if elections were held and were subsequently declared invalid, would be
immeasurably worse.
The further disruption
which would result in the Akwesasne community if elections, otherwise validly
and democratically held, were voided because of an absence of proper authority to
hold them could be substantial. Those elected in accordance with the perceived
will of the people would be forced to abandon their seats on the Council in
favour of members who no longer hold the trust of the community. This would add
considerable difficulty to an already difficult situation.
In contrast,
preventing the holding of the election until its legality is confirmed would
prevent the immediate resolution of the impasse without, however, adding any
more fuel to the fire.
[Emphasis added]
[40]
In
this case, when considering that Chief Buffalo and Councillor StandingontheRoad
were to be reinstated by the Court hearing the judicial review, the validity of
the decisions taken by the Council following the April 8, 2011 elections would
ultimately be questioned. This Court is of the opinion that the balance of
convenience favours the applicants, the members of the Montana First Nation and
the democratic process. Accordingly, the Court favours the status quo.
[41]
In
the interest of the parties and the Nation, the application for judicial review
should be resolved as soon as possible. The Court finds that this case should
continue as a specially managed proceeding and on an expedited basis.
ORDER
THIS COURT ORDERS:
1.
The motion
for interlocutory injunction is granted.
2.
The
reinstatement of Carolyn Buffalo as Chief of the Montana First Nation and Leonard StandingontheRoad
as Councillor with access to their offices and with pay.
3.
The respondents
are enjoined, whether directly or indirectly from holding the election planned
for April 8, 2011, or any other by-election or general election of the Montana
First Nation except in accordance with the Regulations.
4.
The
proceeding shall continue as a specially-managed proceeding and on an expedited
basis.
5.
The whole
with costs.
“Richard
Boivin”
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