Date: 20080415
Docket: T-440-08
Citation: 2008
FC 479
Ottawa, Ontario, April 15, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
GEORGE
PRINCE and PAULETTE CAMPIOU
Applicants
and
SUCKER CREEK FIRST NATION
#150A, JARET CARDINAL,
RONALD WILLIER and RUSSELL
WILLIER
Respondents
REASONS FOR ORDER AND ORDER
[1]
The
applicants, George Prince and Paulette Campiou, bring this motion for an
interlocutory injunction against decisions dated February 26, 2008, wherein the
respondents purported to suspend the applicants from their position as
Councillors of the Sucker Creek First Nation. The applicants seek to be
reinstated as Councillors pending the outcome of the underlying application for
judicial review. The applicants have been suspended by the Chief and two
Councillors in the middle of their elected three year term of office.
FACTS
[2]
The
applicants are members of the Sucker Creek First Nation (the respondent Band). They
were elected as Councillors of the respondent Band Council on November 28, 2006
for terms of three years. Their elections were never challenged.
[3]
The Sucker
Creek First Nation is three and a half hours north of Edmonton.
[4]
The
respondent Band is a First Nations Band duly constituted under the Indian
Act, R.S.C. 1985, c. I-5 (the Act). The government structure, procedures,
and custom elections of the respondent Band are governed by the Customary
Election Regulations of the Sucker Creek First Nation #150A (the Election
Regulations). The Election Regulations provide for the election of one Chief and
six Councillors to act as representatives of the respondent Band for a term of
three years.
[5]
The
respondent, Jaret Cardinal, is the Chief of the respondent Band, having been
elected along with the applicants on November 26, 2006. The respondents, Ronald
Willier and Russell Willier, are Councillors of the respondent Band and occupy
positions on Council along with the applicants.
Allegations of misconduct
[6]
On or
about February 6, 2008, the Chief and Council of the respondent Band received a
complaint that the applicants were involved in a conflict of interest with
regard to one of the Band’s contractual arrangements. The allegations were
contained in a letter of complaint dated February 6, 2008, written by Orlando
Alexis, who is employed as the Consultation Officer of the respondent Band.
[7]
The
complaint alleged, in part:
1. the verbal abuse of Band
employees;
2. “political interference” by
the applicants;
3. the diverting of work from one
third party contractor to Joy Ann Prince, the daughter of the applicant George
Prince and first cousin of the applicant Paulette Campiou; and
4. the unauthorized renegotiation
of rates paid to third party contractors for brush and tree clearing under the
contractual arrangement between the respondent Band and ATCO Electric Ltd.
Process leading to the suspensions
[8]
In
response to the letter of complaint, on February 7 or 8, 2008, the respondent
Band Council convened a meeting to address the allegations raised therein. Both
applicants were present at that meeting and had a copy of the letter of
complaint.
[9]
On
February 14, 2008, the respondent Band Council convened to review the issues
raised in the letter and to determine how best to proceed. The applicants were
present at that meeting and presented a letter from Vic McArthur responding to,
and rebutting, the allegations against them.
[10]
On
February 15, 2008 the Chief and Council convened another meeting to decide how
to proceed in relation to the applicants. The applicants were excluded from
this meeting.
[11]
On
February 20, 2008 the Sucker Creek First Nation received a letter (which the
respondents concede was important) from Morgan Construction and Environmental
Ltd. This letter alleged “issues” regarding rates of pay for contractors, which
was the main conflict of interest allegation against the applicants. This
letter was never shown to the applicants.
[12]
On
February 21, 2008 the respondent Band received a memorandum from ATCO Electric
Ltd. alleging problems with rates of pay for contractors involving the
applicants. This memorandum was also never shown to the applicants.
[13]
On
February 22, 2008, the respondent Band Council convened a “secret” meeting in Edmonton, Alberta, at which all of the
allegations against the applicants were further deliberated. Present at that
meeting were the three individual respondents, as well as Councillor David
Prince. Neither of the applicants were present at the meeting, nor were they notified
of its occurrence. Also not present at the meeting was Councillor Ken Cardinal,
who was under suspension pending an investigation into unrelated allegations of
misconduct.
[14]
At the
meeting, it was decided that the applicants should be suspended with pay until
such time as an independent investigation had been conducted into the
allegations contained in the letter of complaint. On or about February 29, 2008,
the applicants each received a letter signed by Chief Cardinal and the two
respondent Councillors advising them of the suspensions. The letters, dated
February 26, 2008, are the decisions under review and stated, in part:
Given the seriousness of this situation,
the Chief and Council are compelled to act and look into this issue. Therefore,
I regret to inform you that you have been suspended from your position on
Council pending a full investigation into this matter. The suspension will be
with pay. During the investigation, you will be prohibited from going to the
Finance Office or from having any dealings with the Consultation Department….
Please turn in your keys, your cell phone as well as any other Band Property.
The applicants ignored the respondents’ letters and
continued to perform their duties as Councillors.
[15]
On March
3, 2008 the applicant Paulette Campiou responded to the letter of complaint
dated February 6, 2008.
[16]
On March
10, 2008, the applicants each received another letter from the respondents
advising them that if they did not abide by the suspension decision, their pay
would be suspended and a special meeting called to consider removing them from
office. The letters provided for a “framework of investigation” and review,
which outlined the process that the respondent Band would follow in assessing
the plausibility of the allegations. As well, the letters outlined how the
ultimate suspension decision was reached, stating at page 3:
On Friday, February 22, 2008, the Chief
and Council met in Edmonton, at the Hilton Garden Suites
Hotel to follow up the initial review of the letter of complaint.
Based on the information tabled, it was
felt that it was in the interests of the Council’s, our membership, and our
community that both George Prince and Paulette Campiou be suspended pending an
investigation of this letter of complaint.
The formal vote occurred and the motion
passed as the votes all registered in the affirmative. As a result, both you,
Paulette Campiou and George Prince are suspended from active duty as
Councillors effective immediately with pay.
[17]
On March
12, 2008, the applicants arrived at the offices of the respondent band and
discovered that the locks on their office doors had been changed and that they
were forbidden to access the premises. On March 17, 2008, the applicants filed
the within application for judicial review, as well as this motion, in which
they seek an interlocutory injunction allowing them to continue to carry out
their duties uninterrupted until the within application is finally determined.
[18]
On March
20, 2008, the pay of each applicant, while under suspension, was reduced from
$1,750 a week each to $700 a week.
ISSUE
[19]
The sole
issue raised in this motion is whether the applicants are entitled to an
interlocutory injunction in this fact situation preventing the respondents from
suspending the applicants as Councillors of the sucker Creek First Nation.
ANALYSIS
Issue: Should the
applicants be allowed to carry out their duties as Councillors without further
interference from the respondents until the underlying application for judicial
review is finally determined?
[20]
It is well
settled that the test to be applied in considering whether an interlocutory
injunction is appropriate is the tri-partite test articulated by the Supreme
Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311. In that case, the Court stated that an applicant must
establish three principles in order to be granted an interlocutory injunction.
Those principles are:
i.
the
existence of a serious issue to be tried;
ii.
the
existence of irreparable harm if the injunction is not granted; and
iii.
the
balance of convenience must favour granting the injunction.
All three elements must be considered in
turn.
Serious issue to be tried
[21]
This Court
is seized with this motion and underlying application for judicial review on
account of the fact that the respondent Band Council falls within the meaning
of a “federal board, commission or other tribunal” as defined in section 2 of
the Federal Courts Act, R.S.C. 1985, c. F-7. As I held in Roseau
River Anishinabe First Nation v. Atkinson, 2003 FCT 168, 228 F.T.R. 167 at
paragraph 19:
¶ 19 In past cases the
Federal Court has assumed jurisdiction over Indian band councils, regardless of
whether the election of the band council was pursuant to band custom or the Indian
Act, see Canatonquin v. Gabriel, [1980] 2 F.C. 792 (F.C.A.) and Lameman
et al. v. Gladue et al. (1995), 90 F.T.R. 319 (T.D.). As Mr. Justice
Rothstein stated in Sparvier v. Cowessess Indian Band No. 73, [1994] 1
C.N.L.R. 182; 63 F.T.R. 242 (T.D.), at p. 4:
It
is well settled that for purposes of judicial review, an Indian band council
and persons purporting to exercise authority over members of Indian bands who
act pursuant to the provisions of the Indian Act constitute a “federal board,
commission or other tribunal” as defined in section 2 of the Federal Court
Act [...] an Indian band council came within the jurisdiction of the
Federal Court where the election of the band council was pursuant to band
custom and not the Indian Act.
[22]
In the
case at bar, the elections and procedures of the Band Council are governed by the
provisions contained within the Election Regulations. Accordingly, whether
there exists a serious issue depends largely on whether those Regulations were
followed in reaching the decision to suspend the applicants from the Band
Council, or whether the Band Council has the inherent right to suspend the
applicants.
[23]
The
applicants argue that the decision of the respondent Band Council cannot stand
since the Election Regulations do not authorize the suspension of members of
the Band Council. The respondents, however, argue that the decision was properly
authorized by the Election Regulations, which give the Chief and Council the
authority to make decisions “for the proper governance of the Sucker Creek
First Nation.” Further, the respondents rely on the view that legislative
bodies such as the respondent Band Council have the power to suspend or expel
one of its members, and that this power has long been the prerogative of the
legislature and is independent of any explicit statutory provisions enabling
such action. Accordingly, the respondents submit that the Band Council has the
“inherent authority to make rules and procedures to govern their own process
including policies and procedures to investigate allegations of misconduct.”
[24]
Further,
the applicants also argue that the suspension decision breached the duty of
procedural fairness in that it was made without the applicants having been
given any notice of the meeting or an opportunity to address the allegations against
them.
[25]
As the
above matters concern issues of jurisdiction, procedural fairness, and natural
justice, the respondents, while maintaining that the respondent Band Council
acted with jurisdiction and in accordance with the principles of procedural
fairness and natural justice, concede that such issues are “serious questions
to be determined by this Honourable Court.”
First Serious Issue
[26]
The
Election Regulations deal specifically with the removal from office of a duly-elected
Councillor. These Regulations have not been followed. The applicants raise a
serious issue with a real possibility of success that the respondents cannot
suspend a Councillor, either indefinitely, as was done in the case at bar, or
even for a limited timeframe, without following the procedures contained within
the Election Regulations.
Second Serious Issue
[27]
In the
alternative that the respondent Band has the inherent power to suspend, the
applicants raise a serious issue likely to succeed that they cannot be
suspended without first being given a full opportunity to know the case against
them, including the allegations from Morgan and ATCO, as well as a full
opportunity to respond to the allegations before Council. There is a right
to a fair hearing before being fired or suspended.
Third Issue
[28]
Finally,
the applicants raise a serious issue to be decided at the hearing of this
application for judicial review whether the respondents can suspend or “fire”
the applicants without a petition from 50 percent plus 1 of the electors as
required in section 15.3 of the Election Regulations. The interpretation of
section 15 of the Election Regulations is a serious issue between the parties.
Moreover, a question arises about whether section 15 is still a practical
procedure for removing an elected Chief or Councillor who warrants removal in
view of the jurisprudence that off-reserve band members are now considered part
of the band electorate.
[29]
Accordingly,
the Court concludes that the applicants have demonstrated the existence of a
serious issue to be tried at the higher threshold of likely to succeed.
Irreparable Harm
[30]
An
applicant seeking an interlocutory injunction must show that they would suffer
irreparable harm if the injunction is not granted. Establishing irreparable
harm is a difficult task, as it involves establishing that the harm caused
could not later be compensated through damages. As I stated in White v.
E.B.F. Manufacturing Ltd., 2001 FCT 1133, 15 C.P.R. (4th) 505 at
paragraph 13:
¶ 13 ... The second question is
whether damages will provide the plaintiff with an adequate remedy. An
interlocutory injunction is a discretionary and equitable remedy which will not
be granted in the absence of the applicant showing irreparable harm.
“Irreparable” refers to the nature of the harm suffered rather than its
magnitude. It is harm which cannot be quantified in monetary terms or which
cannot be cured with damages....
[31]
In Gabriel
v. Mohawk Council of Kanesatake, 2002 FCT 483, [2002] F.C.J. No. 635 (QL),
Madam Justice Tremblay-Lamer considered irreparable harm within the context of
Band Councils, stating at paragraphs 26-27 that the political nature of the offices
held by councillors creates a very different situation than occurs within a
general employment context:
¶ 26 The applicant argues
that he will suffer irreparable harm, which cannot be quantified in monetary
terms, should I refuse to grant an interlocutory injunction reinstating him as
Grand Chief of the Mohawk Council of Kanesatake pending a final order in the
matter. 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. This was recognized by my colleague MacKay J. in Frank
v. Bottle et al (1993), 65 F.T.R. 89 at paras. 27-28 where he said:
In
my view the law concerning wrongful dismissal, and damage awards for that,
deals with situations of employer-employee relations and it does not provide
for remedies for loss of elective office. The Chief is not an employee of
Council nor in my view can he be considered an employee of the Tribe. The
office of Chief is political, filled by valid election, with attendant
responsibilities that transcend any concept that he is an employee of the
Tribe, just as is the office of council member.
...
Without determining the issues which are not before the Court, in my view, he
would have no claim in damages for wrongful dismissal and probably no realistic
monetary claim for loss of reputation.
[…]
¶ 27 Therefore, if I did
not grant an injunction and the applicant subsequently succeeded with his
application for judicial review, he would not be entitled to the relief normally
available to employees who have been dismissed. This, in my view, constitutes
irreparable harm.
[32]
While
Madam Justice Tremblay-Lamer was addressing irreparable harm within the context
of the removal of the Grand Chief of the Mohawk Council of Kanesatake, I
believe that the same considerations apply when considering the suspension and
possible dismissal of two Councillors of the respondent Band Council. Like the
situation in Gabriel, the position of a Councillor of the respondent
Band is a political office to which the applicants have been elected by other
members of the Sucker Creek First Nation. 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 irreparably harms not only the applicants themselves, but also those
individuals who elected them as their representatives in November 2006.
Balance of Convenience
[33]
The
applicants submit that the balance of convenience is with the restoration of
the applicants to their positions as Councillors of the respondent Band, at
least until this application is finally determined. Their argument is premised
on the view that if the injunction is not granted, they will be prevented from
governing the people who elected them to office, and those people will be
deprived of their elected representatives.
[34]
When
determining where the balance of convenience lies, it is paramount to ask who
is likely to be more injured by the Court’s decision.
[35]
The
applicants have shown that the democratic process and their constituents will
be irreparably harmed should the injunction not be granted. To begin with, their
suspensions are indefinite, meaning that no definitive timeline has been
established concerning the investigation into the allegations against them. Only
one year and eight months remain in the applicants’ term of office. Each month
is important.
[36]
Accordingly,
the balance of convenience favours the applicants, their constituents, and the
democratic process. The concern over the alleged conflict of interest can be
addressed by suspending the applicants’ duties with respect to the ATCO
contracts until the investigation has been completed.
CONCLUSION
[37]
For
these reasons, this motion for an interlocutory injunction will be granted.
UNDERTAKING AS TO DAMAGES
[38]
The
applicants, George Prince and Paulette Campiou, have undertaken to abide by any
Order concerning damages caused by the granting of the injunction as required
by Rule 373(2) of the Federal Courts Rules, S.O.R./98-106.
ORDER
THIS COURT ORDERS that:
1.
This
motion for an interlocutory injunction is allowed with costs in the cause;
2.
The
respondents are enjoined from suspending the applicants as Councillors in
accordance with these Reasons for Order; and
3.
The
respondents are ordered to reinstate the applicants as Councillors with access
to their offices and with their pay, including back pay.
“Michael
A. Kelen”
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