Date: 20081114
Docket: T-440-08
T-1370-08
Citation: 2008 FC 1268
Ottawa, Ontario, November 14,
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 JUDGMENT AND JUDGMENT
[1]
The
parties in this case are before the court on two separate matters. The first matter
(T-440-08) is an application for judicial review of the Sucker Creek First
Nation Band Council’s decision, dated February 22, 2008, to suspend the
applicants as elected Councillors pending an investigation into allegations of
conflict of interest against the applicants. On April 15, 2008, I granted an
interlocutory injunction reinstating the applicants as Councillors pending the
outcome of this judicial review application.
[2]
The
second matter (T-1370-08) is an application for judicial review of the Band
Council’s resolutions dated August 20, 2008 to remove the applicants
from their positions as elected Councillors of the Sucker Creek First Nation. On
September 30, 2008, Madam Justice Hansen granted the applicants’ motion for an
interlocutory injunction and ordered that the applicants be reinstated as
Councillors with pay, including back pay, pending a determination of this application
for judicial review.
Overview
[3]
In
this case, the Court concludes that the first application to set aside the
decision suspending the applicants must be allowed because the indefinite suspension
of the two councillors was effectively a removal, and the Council did not
follow the election rules to remove the applicants. Moreover, the Council
Meeting suspending the two councillors lacked fairness in that the applicants were
not given notice of the allegations against them or an opportunity to respond.
The second application to set aside the Band Council resolutions removing the
two councillors is also allowed. The clear election regulations (referred to
below) were not followed in that there was no prerequisite petition from the
electors seeking the removal of the two councillors before the Council removed
them.
[4]
The
Court also expresses surprise that the Sucker Creek First Nation was using its
money on a legal case that is so clearly without merit and contrary to the election
regulations after the Court had granted the injunction on April 15, 2008
FACTS
Facts
relating to the first matter: the decision of Sucker Creek First Nations Band
Council to suspend Applicants (T-440-08)
[5]
The
facts of this case prior to the removal of the applicants as Councillors of the
Band are as found in my Order for the interlocutory injunction, Prince v.
Sucker Creek First Nation #150A, [2008] F.C.J. No. 599 at paragraphs 2 to
18:
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;
The Sucker Creek First Nation
is three and a half hours north of Edmonton;
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; and
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
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.
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
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.
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.
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.
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.
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.
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.
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 or ATCO. Please turn in your keys, your cell phone as
well as any other Band Property.
… In the meantime, your
suspension from your duties as a member of Council remains in place until the
investigation has concluded and Council determines what step, if any, need to
be taken next.
The applicants ignored the respondents’
letters and continued to perform their duties as Councillors.
On March 3, 2008 the applicant
Paulette Campiou responded to the letter of complaint dated February 6, 2008.
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.
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.
On March 20, 2008, the pay of
each applicant, while under suspension, was reduced from $1,750 a week each to
$700 a week.
[6]
On
April 7, 2008 I heard the motion by the applicants for an interlocutory
injunction prohibiting the respondent Sucker Creek First Nation from suspending
them as Band Councillors pending the outcome of this judicial review
application. On April 15, 2008 I delivered my Reasons for Order and Order that
the interlocutory injunction will be granted. I held at paragraph 35:
¶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 time table has been established concerning the
investigation into the allegations against them. Only one year and 8 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.
[7]
Following
this Order, the applicants were reinstated with pay and their duties with
respect to the ATCO contracts were suspended until the investigation was
completed.
[8]
On
July 4, 2008 the independent investigative body handed down its report to the
Council. The Council made no decision regarding the suspension. Instead the
Council began proceedings to remove, rather than suspend, the applicants.
Additional
facts relating to the second matter: the decision of Band Council to remove
Applicants (T-1370-08)
[9]
On
August 21, 20078, the applicants received a copy of a Band Council Resolution dated
August 20, 2008 stating that they had been removed as Councillors. The
Resolution was signed by the three individual respondents and indicated that
the decision had been reached pursuant to meetings held on July 23, August 7
and August 19, 2008.
[10]
The
respondents state that a Notice of Special Council Meeting was served on each
Councillor and a Special Council Meeting was held on July 23, 2008 at Sucker
Creek First Nation. This meeting was adjourned then continued on August 7 and
August 19 in Edmonton. Notices
were served on each Councillor at least 48 hours prior to the continued Council
Meetings.
[11]
The
applicants received a notice on or about July 14, 2008 indicating that a
Special Meeting of Council would be held on July 23, 2008, for the purpose of
considering their removal as Councillors. The applicants state that this
meeting was not convened by the Council but was called by Chief Jaret
Cardinal. Council did not receive a petition of any kind seeking the removal
of the applicants as Councillors. This meeting was held at the Sucker Creek
First Nation premises.
[12]
The
applicants state that the Band Council Resolution was not presented at the
meetings of July 23 and August 7. All Council members were present at the July
23 meeting. At that meeting the applicant Paulette Campiou read into the
record a number of jurisdiction objections to the meeting on behalf of herself
and the applicant George Prince, including objections based on the lack of a
petition seeking their removal, and the fact that the Special Meeting had not
been convened by Council. After the applicant Paulette Campiou stated that she
wished to have her lawyer present, all of the Council agreed to adjourn the
meeting to August 7.
[13]
Between
July 23 and August 7, 2008, counsel for the applicants requested particulars of
the allegations against the applicants, specifically which alleged facts
constituted which of the alleged breaches. The applicants state that counsel
for the Band refused to provide particulars, replying that the applicants knew
the allegations against them and that these were contained in the affidavit
sworn by Chief Jaret Cardinal in the application for the interlocutory
injunction that came before me in April 2008.
[14]
The
next Council Meeting was held in Edmonton, three and half hours
away from Sucker Creek at the law offices of Ms. Pricilla Kennedy, counsel for
the respondents in the second matter. The Chief and the six Council members
attended the meeting together with their respective lawyers (5 lawyers plus one
student-at-law). The 53-page verbatim transcript of the meeting was before the
Court at the hearing.
[15]
In
reviewing the 53-page transcript, it is clear that the meeting was completely
consumed by legal wrangling about “legal” objections raised by the lawyers
including the allegation that Chief Jaret Cardinal could not rule on the
removal of the applicants since he had commenced an action against the
applicants in the Court of Queen’s Bench of Alberta for defamation.
The meeting was adjourned with the agreement of all counsel that “once legal
counsel has provided direction” the meeting will be resumed. (Ms. Kennedy
agreed to that at page 52 of the transcript she said “o.k.”.) Ms. Crook, also
counsel for the respondent agreed to that. Ms. Crook said at page 52 “thank
you”. (Counsel for the respondents Ms. Kennedy and Ms. Crook agreed at page 52
of the transcript.)
[16]
On
August 14, 2008, the applicants received a notice that the Special Meeting to
consider their removal as Councillors would continue on August 19, 2008. The
applicants state that this further meeting was not convened by Council or with
their concurrence. The applicants did not attend the August 19, 2008 meeting,
which was again held in the law offices of Ms. Kennedy.
[17]
Four
of the seven Council members were not present at the meeting on August 19,
2008. The transcript from the August 19 Special Council Meeting indicates that
there was a motion to remove Councillor George Prince put forward by Ronald
Willier, seconded by Russell Willier, and voted on by the three present
Councillors. Following this, a motion to remove Councillor Paulette Campiou was
put forward by Russell Willier, seconded by Ronald Willier, and voted on by the
three Councillors present.
[18]
The
Band Council Resolutions removing Councillors George Prince and Paulette
Campiou contained a statement of the appeal process provided in the Election
Regulations. The applicants have not appealed the decisions to remove them
to the Appeals Committee under the Regulations. The applicants state
that the only remedy available to them under the regulations would be a
by-election, which is not an adequate remedy.
ISSUES
[19]
The
issues in this application are:
a. Was the
decision of the Band to suspend the applicants from their positions as
Councillors valid?
1. Does the
Council have the authority to suspend Councillors?
2. Was the
decision validly made at a duly convened Council meeting?
3. Was the
decision to suspend the applicants lacking in procedural fairness?
b. Was the
decision of the Band to remove the applicants from their positions as
Councillors valid?
1. Were the
proper procedures followed in removing the applicants from their positions as
Councillors?
2. Was the
decision to remove the applicants lacking in procedural fairness?
3. Is there an
alternate adequate remedy?
STANDARD OF REVIEW
[20]
The
respondents submit that the decision of the Band Council to suspend the
applicants was a factual question to be determined by the member of Council.
Thus, the respondent submits that the appropriate standard of review is
reasonableness.
[21]
The
applicant has argued that the Council acted beyond its powers in suspending the
applicants. Mr. Justice Beaudry held in Martselos v. Salt River First
Nation, 2008 FC 8 at paragraphs 16-18 that on questions of whether the
Council acted beyond its powers, the appropriate standard of review is
correctness (see also Vollant v. Sioui, 2006 FC 487, 295 F.T.R. 48, per
Justice de Montigny at paragraph 31). The respondents have argued that the
Council has the authority to suspend by custom. The Federal Court of Appeal
noted, in its decision upholding Mr. Justice Beaudry’s holding in Martselos,
that “the Council has a greater expertise on matters such as knowledge of the
Band’s customs.” (See also Giroux v. Swan River First Nation, 2006 FC
285, 288 F.T.R. 55, per Justice Dawson at paragraph 54, varied on other grounds
in 2007 FCA 108, 361 N.R. 360 [Giroux]).
[22]
Writing
for the Federal Court of Appeal in Martselos, Madam Justice Trudel held that
if the Council is found to have the power to carry out the impugned act, its
application to the facts and the exercise of its discretion to the facts is
reviewable on a standard of reasonableness Martselos v. Salt River Nation
#145, 2008 FCA 221 at paragraphs 27-32.
[23]
Breaches
of procedural fairness are reviewed on a standard of correctness (Martselos,
supra, per Mr. Justice Beaudry at paragraph 18).
[24]
On
the issue of the removal of the applicants, the primary issue is procedural
fairness, which is subject to a standard of review of correctness.
ANALYSIS
1. The first matter -- Suspension
of the Applicants
i. Authority
of the Council to suspend Councillors
[25]
The
applicants submit that the Council does not have the power to suspend
Councillors. The Election Regulations do not make any provision for the
suspension of Councillors. The Regulations only contain a provision for
the removal of Councillors. The applicants, citing Martselos v. Salt River
First Nation, 2008 FC 8 in their written memorandum, argue that where the
powers of Council are set out in an Elections Code, the Council is limited to
those powers and it would be incorrect to expand them. In Martselos, a
Chief of the Salt River First Nation was removed on grounds other than those
listed in the Election Regulations. Mr. Justice Beaudry held at
paragraph 32 that the “Customary Election Regulations are an
all-encompassing legal code which establish the grounds for which a Chief or
Councillor may be removed from office” and that it would be incorrect to expand
these grounds.
[26]
The
applicants further argue that an indefinite suspension is, in effect, a
removal. The provision in the Election Regulations for the removal of
Councillors requires that a petition be brought containing the signatures of
more than 50% of the electorate. The applicants submit that as the removal
provision was not invoked or followed, the suspension was also invalid if
considered an effective removal.
[27]
The
respondents submit that the custom of the Sucker Creek Nation is that the Chief
and Counsel can suspend and otherwise sanction Councillors for misconduct.
[28]
The
courts have held that customs of a band are practices “which are generally
acceptable to members of the band upon which there is broad consensus.” (See Bigstone
v. Big Eagle, 52 F.T.R. 109 per Justice Strayer at p.8; see also Bone v.
Sioux Valley Indian Band No. 290 Council (1996), 107 F.T.R. 133 per Justice
Heald at paragraph 26; McLeod Lake Indian Band v. Chingee (1998), 153
F.T.R. 257 per Justice Reed at paragraphs 12-13.)
[29]
The
respondents submit that the Chief and Council of Sucker Creek Fist Nation have
historically suspended Council members for misconduct, and point out that the
present Council, including the two applicants, suspended another Council Member
on January 20, 2008. The affidavits of Fred Badger and respondents Councillor
Ronald Willier and Russell Willier state that this is a practice accepted by
general custom and usage.
[30]
Finally,
the respondents submit that both the Election Regulations and the Band's
draft Code of Ethics give the Council the power to sanction or suspend
its members. The Election Regulations provide that council has the
authority to take actions and decisions “for the proper governance of the
Sucker Creek First Nation.” The only authority expressly provided to the
Council to deal with misconduct by Councillors under the Election
Regulations is the authority to remove Councillors upon receipt of a
petition signed by 50% plus one of the Band members. The respondents argue
that not only customary practice, but also common sense and “the general law
recognizing the power of a legislative body to sanction or control its own
members” give the Council the authority to discipline Councillors short of
removing them from office.
[31]
The
Court agrees that the Council has powers through custom which are not codified
in the Election Regulations or elsewhere. The Council has the authority
through customary practice to discipline or sanction Council members short of
removal. For example, the Council had the authority to suspend the applicants’
duties with respect to the ATCO contract, and I upheld this aspect of the
applicants’ suspension while granting the interlocutory injunction reinstating
the applicants from their suspension. However, the indefinite
suspension of Councillors who are elected for three year terms is effectively a
removal, with serious consequences. Not only does it deprive Councillors of
the ability to fulfill their duties before any allegations against them have
been proven, it also leaves the constituents who elected them unrepresented. To achieve
such an outcome, the Council must follow the removal procedure outlined in the Election
Regulations. Further, as discussed below, the process used in suspending
the applicants was lacking in procedural fairness. Even if there exists a
general consensus that the Council has the power to suspend Councillors, a
suspension carried out in this manner is a breach of procedural fairness and
cannot be protected as a customary practice.
[32]
Mr.
Kenneth McLeod, counsel for the Sucker Creek First Nation, Ronald Willier and
Russell Willier, argued that the application for judicial review of the
suspension decision should be dismissed because it is moot. It is not moot if
the subsequent decision by the respondents to remove the applicants is set
aside on judicial review. Then the Court would be left to decide whether the original
decision to suspend the applicant was valid. In any event, even if the first
matter was moot, the Court sees an importance for the parties in having the
suspension matter resolved to settle an important legal question between the
parties which remains pertinent.
[33]
I
am satisfied, as was Madam Justice Tremblay-Lamer in Lafond v. Muskeg Lake
Cree Nation, 2008 FC 727 at paragraphs 10 to 12, that the Chief and Council
retain customary powers and authority, where Band legislation has not “covered
the field”, to suspend and discipline councillors. However, like Madam Justice
Tremblay-Lamer in that case, I am satisfied that the applicants “suspension”
from office was in fact a “removal” from their elected position. Justice
Tremblay-Lamer said at paragraph 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.
ii. Was the meeting a “Duly
Convened Meeting” of Council?
[34]
Neither
the Indian Act and its regulations, nor the Band’s Election Regulations,
contains a definition of a “duly convened meeting.”
[35]
The
applicants, citing in their memorandum Assu v. Chickite, [1999[ 1
C.N.L.R. 14 (BC S.C.) at paragraphs 39-40, argue that the requirements of a
duly convened meeting are:
1. the meeting is called at the request of a majority of
Councillors;
2. advance notice is given of the meeting; and
3. the meeting is attended by a quorum of Council
[36]
The
meeting in this case was called at the request of the Chief, not the majority
of the Councillors. Advance notice was not given. Further, no notice was
given to the applicants. Thus, the applicants argue that the meeting was not a
“duly convened meeting.”
[37]
Council
meetings are traditionally held at the Band Office in Sucker Creek. The
applicants submit that the respondents deviated so far from this practice in
calling a “secret” meeting in Edmonton.
[38]
Regardless
of the definition of a “duly convened meeting,” a meeting called without
advance notice, and with no notice to the applicants, and held away from the
Band Office, does not conform to any notion of fairness to the applicants. As
discussed below, the lack of notice to the applicants is a procedural fairness
issue that undermines the validity of the Council’s decision to suspend the
applicants.
iii.
Procedural Fairness
[39]
Band
Councils must operate according to the rule of law. This obligates Band
Councillors to respect the duty of procedural fairness in exercising their
powers and taking decisions in the interests of those they were elected to
serve. (See Long Lake Cree Nation v. Canada (Minister of
Indian and Northern Affairs) [1995] F.C.J. No 1020, per Justice
Rothstein at paragraph 31; Balfour v. Norway House Cree Nation, 2006 FC
213, 288 F.T.R. 182, per Justice Blais at paragraphs 12-14).
[40]
It
is trite law that procedural fairness includes the right to be heard.
[41]
The
decision to suspend the applicants was made at a “secret” meeting on February
22, 2008, in an Edmonton hotel. The applicants were not given notice.
The applicants were also excluded from a prior meeting regarding their
suspensions on February 15, 2008. Additionally, the applicants were never
provided with either the letter from Morgan Construction and Environmental
Ltd., containing the main conflict of interest allegations against the
applicants, or the memorandum from ATCO Electric Ltd. alleging problems with
rates for pay for contractors involving the applicants. Thus, the applicants
did not have an opportunity to respond to these allegations or to be present at
the meeting where the decision to suspend them was taken.
[42]
The
decision to suspend the applicants was entirely lacking in procedural fairness
to the applicants. I conclude that the applicants were not validly suspended
from their duties as Councillors.
2. The second matter –
The Removal of the Applicants
i. Were the
proper procedures followed in removing the applicants?
[43]
Sections
15.3 -15.5 of the Election Regulations provide:
15.3 Petition
for Removal
Upon receipt of a petition signed by at
least fifty percent plus one (50%+1) Electors stating one or more of the
grounds set forth in 15.1 and 15.2 for seeking the removal of a named Chief or
Councillor, the Council will convene a special meeting of the Council to
consider the removal of the Chief or Councillor from Office.
15.4 The Chief or
Councillor who is the subject of the petition shall be allowed to present
written or oral evidence.
15.5 Resolution
for Removal
Upon consideration of all relevant
evidence presented at the meeting as to whether the alleged grounds for removal
of a Chief or Councillor fall within the provisions of 15.1 or 15.2, the
council may then by resolution passed at the Special Meeting, remove a Chief or
Councillor from office. Such Resolution must state the grounds for removal and
the effective date of the removal of the person from office.
If a person does want to appeal this
decision, the same procedure for an Election appeal will be followed.
[44]
No
petition was received by the Band Council seeking the removal of the
applicants. The Band Council Resolutions removing the applicants were voted on
by the three respondents only. The respondents do not explain why section 15.3
of the Elections Regulations was not followed except their assertion
that the grounds for removal specified in section 15.1 and 15.2 do not require
a petition and in any event, the respondents submit that the applicants have an
alternate remedy for appealing their removal under s. 15.5 of the Election
Regulations. Thus, the respondents submit that it is unnecessary for the
Court to consider the alleged errors surrounding the removal of the applicants.
[45]
The
Court finds that the Council members not present were given proper notice of
the meeting on August 19th and a proper description of the subject
of the meeting. The Court is perplexed when Council Members do not attend so
that a resolution of issues is grid-locked.
[46]
The
submission that the resolution removing the applicants is not valid because
there was not a quorum of four councillors as required by the Election Regulations,
(subsection section 2 (q)) and will not be given any weight. The applicants
cannot contend that the meeting did not have a quorum when they had adequate
notice of the meeting and chose not to attend. They cannot lift themselves up
with their own bootstraps.
[47]
It
is clear to the Court that the procedures for removing elected Councillors in
the Election Regulations were not followed. Thus, the removal is not valid
under the Election Regulations for the following two reasons:
a.
the
Election Regulations clearly and expressly provide that the Council can only
remove the Chief or a Councillor upon receipt of a petition signed by at least
50% plus one of the electors stating the grounds under section 15.1 or 15.2 for
seeking the removal before the Council can convene a special meeting to
consider the removal. In this case there was no such petition; and
b.
the
meeting where the applicants were allegedly removed, was not a meeting convened
by the Council. In fact, four of the seven members of Council did not agree to
that meeting at that date. When the previous meeting had adjourned it was
agreed that the next meeting would be at a time and place agreed upon. Instead
this meeting was set unilaterally by the respondents.
[48]
As
Madam Justice Carolyn Layden-Stevenson held in Denn Tha’ First Nation v.
Didzena 2005 FC 1292 at paragraph 28:
…. Further, the removal of an individual
from office is a serious matter. It has a profound impact on the individual.
Here, the negative consequences for the First Nation community are
indisputable. It is appropriate, where such a serious step is to be taken, that
safeguards articulated in the governing regulations be followed to the letter …
[49]
In
this case, the Election Regulations require that there be a petition of
50% plus one of the electorate before the applicants can be removed by Council.
The electorate elected the applicants and the Election Regulations give the
electorate the power to initiate their removal. The Election Regulations are
crystal clear, and reflect logical and democratic principles. Otherwise,
Councillors who fight amongst themselves could bring resolutions to remove each
other by forming alliances of four councillors. That would undermine the will
of the electors and makes no sense.
ii. Adequate
Alternate Remedy
[50]
The
respondents argue that section 15.5 of the Election Regulations provides
the applicants with an adequate alternate remedy. The relevant portion of
section 15.5 provides that “if a person does want to appeal this decision, the
same procedure for an Election appeal will be followed.”
[51]
The
applicants argue that section 15.5 of the Election Regulations does not
provide an adequate remedy. The procedure for an appeal under section 15.5 is
the same procedure followed in appealing an election result under section 12.8
of the Election Regulations. The remedies available all result in a
by-election. There is no remedy under the Election Regulations to reverse
the decision to remove the applicants and to reinstate them in their position
as Councillors.
[52]
The
respondents rely on Willier v. Sucker Creek Indian Band #150A, 2001 FCT
1325 to argue that the appeal process in the Regulations must be
followed. In that case, Mr. Justice Gibson held at paragraph 22:
It is not for this Court to run roughshod
over the will of the people of this First Nation and intervene in the role
reserved to the Election Appeal Committee where that Committee has had not
opportunity to act and to perform the function reserved to it.
[53]
Willier, however, is
distinguishable on the facts. In that case, the dispute between the parties
concerned an election and not the removal of a councillor. While a by-election
may be a perfectly adequate remedy when appealing the outcome of an election,
it does not follow that it will suffice where an elected councillor has been
removed.
[54]
In
Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, Chief Justice Lamer listed
several factors that may be considered in determining whether there is an
adequate alternative remedy:
¶37 ... I conclude that a variety
of factors should be considered by courts in determining whether they should
enter into judicial review, or alternatively should require an applicant to
proceed through a statutory appeal procedure. These factors include: the
convenience of the alternative remedy, the nature of the error, and the nature
of the appellate body (i.e., its investigatory, decision-making and remedial
capacities). I do not believe that the category of factors should be closed, as
it is for courts in particular circumstances to isolate and balance the factors
which are relevant.
[55]
In
the present case, the alleged errors are the misapplication of the Election
Regulations and breaches of procedural fairness. The appellate body under the
Election Regulations, the Election Appeal Committee, does not have any specific
ability to deal with errors of this nature. The remedies available through
the Committee are limited to calling a new election, a by-election or a run-off
election. The Committee does not have the power to reverse the removal of the
Councillors or to reinstate them. Thus, the nature of the error and the nature
of the appellate body suggest that the appeals process in the Elections
Regulations is not an adequate alternate remedy, and that judicial
review is the more appropriate remedy in this case.
CONCLUSION
[56]
For
the foregoing reasons, the Court concludes:
a. the first
application to set aside the decision to suspend the applicants is allowed.
While the Sucker Creek First Nation Chief and Council have the power through
custom to suspend or discipline the Chief or Council Members, the indefinite
suspension of the two Councillors in this case is effectively a removal. The
clear procedure for removal was not followed. In any event, the meeting called
to suspend the two Councillors was not a “duly convened meeting”. Moreover, the
meeting lacked fairness in that the Councillors affected were not given notice
or an opportunity to respond to the allegations against them which led to their
suspension; and
b. the second
application to set aside the decision to remove the two Councillors is also
allowed. The decision removing the two Councillors is set aside. The Election
Regulations were not followed in that there was no petition from 50% plus one
of the electors seeking the removal of the two Councillors for one or more of
the grounds set fourth in section 15.1 and 15.2 of the Election Regulations.
No Judgment on the
merits of the alleged conflict of interest
[57]
The
Court makes no judgment on the merits of the alleged conflict of interest
against the two applicants. The Court’s Judgment is restricted to the
requirement that the Band follow its Election Regulations before removing an
elected Councillor, and give the Councillor a fair opportunity to know the
allegations against him or her, and respond before the Band makes any decision
affecting his or her right to sit as a Councillor.
LEGAL COSTS
[58]
The
Court is surprised that the Sucker Creek First Nation has spent its resources on
a case without merit and contrary to the Election Regulations.
[59]
On
April 15, 2008 I granted an injunction against the Sucker Creek First Nation
from suspending the applicants without following the requirements under the Election
Regulations.
[60]
The
subsequent file is full of formal legal documents regarding notices of meetings
and minutes of special meetings.
[61]
Then
on September 30, 2008 another injunction was issued by Justice Hanson of this
Court against the Sucker Creek First Nation to again stop the removal of the applicants.
[62]
When
the Court awards legal costs it has to take into account a number of factors.
One factor is why the respondents allowed these applications to proceed when
their defence had no merit.
[63]
Counsel
for the applicants advised the Court that they have incurred legal costs in
excess of $70,000. The applicants request legal costs in the lump sum amount of
$10,000 as Madam Justice Layden-Stevenson allowed in Dene Tha’ First Nation,
above. From the material on these two files the Court does not doubt that
the costs of the applicants were extremely high and that $10,000 as a lump sum
payment is reasonable for party and party costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
these
two applications for judicial review are allowed with costs in the amount of
$10,000;
2.
in
the first matter, Docket T-440-08, the decision of the Sucker Creek First
Nation Band Council dated February 22, 2008 suspending the applicant is set
aside; and
3.
in
the second matter, Docket T-1370-08, the Band Council Resolutions dated August
20, 2008 removing the applicants as Councillors is set aside.
“Michael
A. Kelen”
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