Date: 20080612
Docket: T-201-08
Citation: 2008 FC 726
Montréal, Quebec, June 12, 2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
ALBERT
DEAN LAFOND
Applicant
and
MUSKEG LAKE CREE NATION
AND CHIEF GILBERT LEDOUX
Respondents
REASONS FOR ORDER AND ORDER
[1]
This
is an application for judicial review brought by the applicant pursuant to s.
18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Federal
Courts Act), as amended, respecting a decision taken on approximately
January 8, 2008 whereby Chief Ledoux of the Muskeg Lake Cree Nation (MLCN)
suspended the duties of the applicant, Councillor Lafond, as a councillor of
the MLCN.
[2]
The
applicant asserts that he was improperly removed from office by a procedure
created by the Chief and not according to the procedure set out in the Act
Respecting the Government Elections and Related Regulations of the Muskeg Lake
Cree Nation (the Election Act). The respondents submit that this
Court does not have jurisdiction to review this decision, and that the Chief
was acting according to the authority granted to him by Band custom.
BACKGROUND
[3]
On
February 13, 2006, the applicant was elected as a councillor to the MLCN Band
Council for a term of three years.
[4]
The
respondent Band is located in the province of Saskatchewan and has
reserve land near the town of Marcelin as well as an urban
reserve in the city of Saskatoon. The individual
respondent, Gilbert Ledoux, is the Chief of the respondent Band and occupies a
position on the Band Council along with the applicant.
[5]
In
2000, the MLCN was removed from conducting its elections under the Indian
Act, R.S., c. I-6 (the Indian Act), by SOR/2000-409. Elections of
the MLCN are now carried out pursuant to the Election Act.
[6]
In
late 2007, Chief Ledoux began receiving complaints concerning Councillor
Lafond’s behaviour towards Band members and Band employees. In addition, other
complaints were made to the Chief to the effect that Councillor Lafond was
improperly and illegally using Band members’ treaty numbers when selling
cigarettes from a store which he owned.
[7]
In
response to these complaints, Chief Ledoux removed the portfolio of Sports,
Culture, and Recreation from the applicant in late 2007. On approximately
October 26, 2007, the applicant received a letter from Chief Ledoux expressing
his concerns regarding the applicant’s behaviour and the welfare of the Band
members and employees and warning the applicant that there would be
consequences if the behaviour continued. Finally, by way of written notice dated
January 8, 2008, Councillor Lafond had his duties as councillor suspended by
Chief Ledoux. The Band Council was not involved in any of these actions.
ISSUES:
[8]
This
application raises the following issues:
- Does
this Court have jurisdiction over the present application?
- Does
the Election Act apply?
ANALYSIS
Does this Court have
jurisdiction over the present application?
[9]
In
order to determine the jurisdiction of the Federal Court in this matter, it is
imperative to properly characterize the action taken by Chief Ledoux in regards
to the applicant. In his submissions, the applicant characterizes the action
as a removal from office, falling squarely within the four corners of the Election
Act which establishes explicit procedures to be followed in such a
circumstance. On the other hand, the respondents characterize Chief Ledoux’s
act as a suspension which does not fall within the Election Act, and
thus was carried out pursuant to his customary authority as Chief of the MLCN.
[10] The
respondents concede that some of the Chief’s traditional powers and authority
have been replaced by legislation enacted by the Band, and the provisions of
the Indian Act, but that certain traditional powers and authority remain
vested in the Chief such as assigning, moving, and removing portfolios from
Band councillors. The Chief thus retains his customary powers and authority
where Band legislation has not “covered the field”. Indeed this was recognized
by the Federal Court of Appeal in Samson Indian Band v. Samson Indian Band
(Election Appeal Board), 2006 FCA 249, [2006] F.C.J. No. 1051 (QL), at
para. 39, where it held that “(. . .) evidence of prevailing election practice
and custom may be relevant in resolving ambiguities or filling gaps in the
Election Law”.
[11]
I
agree that the Chief does have inherent powers to encourage harmony in his
community which are rooted in Band custom and that while some of these powers
may be modified pursuant to Band legislation and the Indian Act, others
remain intact and exercisable.
[12]
Nevertheless,
I am of the view that while couched as a suspension from office, and thus
qualitatively different from a removal, what has actually occurred in the
present case is a removal of the applicant from his elected position.
[13]
I
note that the respondents cite Black’s Law Dictionary, 8th
Edition, which defines “suspension” as: “[t]he temporary deprivation of a
person’s powers or privileges, esp. of office or profession”. The respondents
argue that the Chief was “removing Councillor Lafond’s powers and privileges in
an emergent situation pending a hearing”. However, no evidence was submitted
to this effect, nor was there any evidence indicating that the suspension was
for a limited period of time. Further, when probed at the hearing, counsel for
the respondents conceded that no hearing was actually pending, nor was any type
of appeal procedure envisioned. Thus, in essence, the applicant was stripped
of all attributes of his elected position as Councillor for an indefinite
period of time and without an avenue of recourse.
[14]
For
the foregoing reasons, I am of the opinion that the applicant was removed from
his elected office and not suspended.
[15]
Pursuant
to s. 18(1) of the Federal Courts Act, in order for this Court to
have jurisdiction over an application, the decision-maker or decision-making
body in question must be a “federal board, commission or other tribunal”.
Section 2 of the Federal Courts Act defines a “federal board, commission
or other tribunal” as:
(.
. .) 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, other than the Tax
Court of Canada or any of its judges, any such body constituted or established
by or under a law of a province or any such person or persons appointed under
or in accordance with a law of a province or under section 96 of the Constitution
Act, 1867;
[16]
Jurisprudence
of this Court and others has consistently held that Band Councils are federal
boards pursuant to s. 2 of the Federal Courts Act (Francis v. Mohawk
Council of Kanesatake, 2003 FCT 115, [2003] F.C.J. No. 156 (QL), at
para. 13; Trotchie v. The Queen et al., [1981] 2 C.N.L.R. 147
(F.C.T.D.); Canatonquin v. Gabriel, [1980] 2 F.C. 792; [1980] F.C.J. No.
87 (QL); Rider v. Ear (1979), 103 D.L.R. (3d) 168 (Alta. S.C. (T.D.)); Gabriel
v. Canatonquin, [1978] 1 F.C. 124).
[17]
The
MLCN has been removed from the application of s. 74 of the Indian Act pertaining
to elections, and has thereby reverted to a local customary electoral system as
embodied in the Election Act. However, even where elections are carried
out pursuant to band custom, this Court has consistently found Councils to be
acting as a “federal board[s], commission[s] or other tribunal[s], and thus
subject to judicial review (See Francis, above, at para. 13; Canatonquin
v. Gabriel, above). I stress that included within the
category of “election by band custom” are matters which are necessarily
incidental to elections such as tenure and removal from office (see Minde v.
Ermineskin Cree Nation, 2006 FC 1311, [2006] F.C.J. No. 1642 (QL), at para.
32; Crow v. Blood Band, [1996] F.C.J. No. 119 (QL), at para. 18).
[18]
In
sum, the action of Chief Ledoux constituted a removal from office. Removals
from office are considered ancillary to Band election matters and this Court
has consistently held that a Band Council or other body with decision-making
power over these matters, even where created or elected according to Band custom,
will still qualify as a “federal board, commission or other tribunal”.
[19]
In
the present case, that the Chief was purporting to act on his own initiative as
Chief and therefore separate from the Band Council, cannot be used as a pretext
to exclude the jurisdiction of the Court. It would be illogical to hold that
this Court has no jurisdiction to review an act committed by a Chief acting
alone in relation to Band election matters. This would result in precluding the
right of applicants to ensure a principled and just process was followed in
decisions affecting their rights and privileges when those decisions are made
by “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” (s. 2 of the Federal
Courts Act).
[20]
In
the recent decision of Minde v. Ermineskin Cree Nation, 2008 FCA 52,
[2008] F.C.J. No. 203 (QL), the Federal Court of Appeal, when confronted with a
jurisdictional challenge where a Chief had been removed from office, noted
that:
(.
. .) the jurisdiction of the Federal Court under section 18 [of the Federal
Courts Act] does not depend on form, but is based on the authority to
decide. To the extent that the Elders Council is empowered to and did
terminate Mr. Minde as Chief pursuant to the Band Constitution, its decision
can be reviewed pursuant to section 18. (at para. 33) [Emphasis added]
I would add that this jurisdiction extends to
those purporting to have authority to decide as well (Roseau River
Anishinabe First Nation v. Roseau River Anishinabe First Nation (Council),
2003 FCT 168, [2003] F.C.J. No. 251 (QL), at para. 19; Sparvier v. Cowessess
Indian Band, [1993] 3 F.C. 142, [1993] F.C.J. No. 446 (QL), at para. 13).
This Court has jurisdiction to review removals of Band Council members from
office, regardless of who purports to possess the authority to do so.
[21]
Accordingly,
I conclude that this Court has jurisdiction over the present application.
Does
the Election Act apply?
[22] As previously indicated,
the Band has been removed from conducting its elections under the Indian Act
and reverted to customary law governing elections, including incidental issues
of tenure and removal from office.
[23]
Given
that I have concluded, based on the evidence, that Chief Ledoux’s action was a
removal, I am of the view that the provisions of the Election Act
relating to removal of elected Council members from office, are applicable.
[24]
With
respect to removal, the Election Act states the following:
REMOVAL
FROM OFFICE
4. Once duly elected by members of the
Muskeg Lake Cree Nation, the Chief and Headmen are politically and financially
accountable to all members of the Muskeg Lake Cree Nation and as such they may
be removed from office if they:
i. Consistently ignore or abuse the
“OATH OF OFFICE”;
ii. Are absent from three (3)
consecutive Muskeg Lake Cree nation assemblies or duly convened council
meetings without justified cause;
iii. Are convicted under the Criminal
Code of Canada for an indictable offence or a dual offence on which the
Crown has elected to proceed by way of indictment, unless such a conviction
relates to the exercise of an aboriginal or treaty right which is a matter of
legal dispute.
[25]
The
Oath of Office includes, inter alia, a pledge to respect all laws,
policies and traditions of the MLCN, to work for the good of the MLCN, and to
respect all other elected officers and employees of the MLCN. Indeed, this is
the same Oath of Office referred to by Chief Ledoux in the October 26, 2007
warning letter sent to the applicant.
[26]
Further,
the section following the provisions relating to removal from office is
entitled “Discipline Procedures” which sets out the procedure for making
complaints against one or more members of the Council. The respondents submit
that the Discipline Procedures are inapplicable in the present case because the
provisions explicitly state that “[a]ny member of the [MLCN], 18 years of age
or older, either individually or as part of a group, may submit a complaint in
writing concerning an alleged violation of section 13 by one or more members of
Council”. Section 13 deals with “Discontinuation of Authority” and not
harassing behavior of a councillor directed to Band members and Band staff.
[27]
While
I acknowledge that the Discipline Procedures in question do refer to s. 13 of
the Election Act, on a plain and fair reading this is obviously a
typographical error and was meant to refer to s. 3 “Standard of Conduct for the
Chief and Headmen”. Indeed, the Discipline Procedures in question appear in the
section of the Election Act relating to removal from office and it would
be absurd to construe them as pertaining to “Discontinuation of Authority”.
They clearly relate to removals from office.
[28]
The
Discipline Procedures are triggered by submitting a complaint which must be
accompanied by a petition signed by 35 electors of MLCN. The complaint shall
be received by the Chief Executive Officer of the MLCN who will then submit it
to a “Discipline Committee” or a “Family Representatives Committee”.
Subsequently, the committee will appoint a three person “Discipline Tribunal”.
[29]
The
Discipline Tribunal shall then hold a hearing into the complaint in which the
complainants and all Council members who are the subject of the complaint will
be provided with written notice of the hearing and given an opportunity to
present evidence and argument in support of their position. The individual(s)
against whom the complaint is made shall be afforded a reasonable opportunity
to know and respond to the allegations made against him or them as the case may
be. The Discipline Tribunal will determine if the complaint has been proven on
a balance of probabilities and if it has, may decide to dismiss the individual
from office or allow the individual to continue in office with or without
conditions attached.
CONCLUSION
[30]
Given
the foregoing, I find that the Election Act sets out explicit discipline
procedures that must be followed if a councillor is to be removed from his
elected position. Chief Ledoux did not follow these procedures and thus could
not remove the applicant from his position as Councillor in the manner in which
he did. Accordingly, the decision taken by Chief Ledoux shall be quashed; the suspension
shall be set aside and declared a nullity. The applicant will continue to
occupy his elected position of Band councillor until, and if removed, according
to the procedures set out in the Election Act.
[31]
The
applicant has requested that solicitor-client costs be awarded in the present
case. I note that in Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405,
[2002] S.C.J. No. 13 (QL), at para. 86, the Supreme Court of Canada stated the
following regarding the awarding of costs on a solicitor-client basis:
It
is established that the question of costs is left to the discretion of the
trial judge. The general rule in this regard is that solicitor-client costs are
awarded only on very rare occasions, for example when a party has displayed reprehensible,
scandalous or outrageous conduct (Young v. Young, [1993] 4 S.C.R. 3, at
p. 134). Reasons of public interest may also justify the making of such an
order (Friends of the Oldman River Society v. Canada (Minister of Transport),
[1992] 1 S.C.R. 3, at p. 80).
[32]
Further,
in Canada v. Amway Corp., [1986] 2 C.T.C. 339, at pages 340-341, the
Federal Court of Appeal stated that “[c]osts as between solicitor and client
are exceptional and generally to be awarded only on the ground of misconduct
connected with the litigation”.
[33]
The
applicant has failed to establish that the respondents have displayed
reprehensible, scandalous or outrageous conduct in connection with the present
litigation or that reasons of public interest exist capable of justifying the
exceptional granting of solicitor-client costs in the present application.
[34]
To
the contrary, I find Chief Ledoux to have acted with the best of intentions in
order to deal with a difficult and contentious situation. Faced with multiple
complaints of misconduct on the part of the applicant, he took the steps which
he felt were appropriate at the time, including the removal of the applicant’s
portfolio, and issuing both a verbal and a written warning. He undertook a
course of action which he believed was in the best interests of the Band and
that provided a measure of fairness to the applicant. However, the fact
remains that the MLCN has created its own Election Act to govern exactly
the situation of misconduct that the Chief was faced with, and this procedure
was not followed in the present case.
ORDER
For these
reasons, the application for judicial review of Chief Ledoux’s decision will be
allowed; the decision is quashed and thereby rendered a nullity. Accordingly,
the applicant will continue to occupy his elected position of Band councillor
until, and if removed, according to the procedures set out in the Election
Act. The whole with costs.
“Danièle Tremblay-Lamer”
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