Docket: T-1412-13
Citation:
2014 FC 569
Ottawa, Ontario, June 13, 2014
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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DODIE FERGUSON, MALCOLM DELORME, ERNEST DELORME, CAROL LAVALLEE,
and KEVIN DELORME
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Applicants
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and
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TERRENCE LAVALLEE,
EDWARD AISAICAN, WALTER PELLETIER, WILLIAM TANNER, and VALERIE
TANNER
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Respondents
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
Ms. Dodie Ferguson, Mr. Malcolm Delorme, Mr.
Ernest Delorme, Ms. Carol Lavallee, and Mr. Kevin Delorme (the “Applicants”)
seek judicial review pursuant to section 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7 of a decision of the Cowessess First Nation Band Council
(the “Band Council”), refusing to order a by-election to fill the position of
Chief of the Cowessess First Nation (the “CFN”). That decision was formalized
at a Band Council meeting on September 25th, 2013 in which a motion for a
by-election was tied in a vote of 4 to 4.
[2]
Broadly speaking, this application concerns a
dispute about whether the position of Chief of CFN is currently vacant, by
operation of law, that is regarding Mr. Terrence Lavallee’s compliance with the
residency requirements set out in the Cowessess First Nation #73 Custom
Election Act (the “Election Act”).
[3]
The Applicants seek the following relief:
1. a declaration that the Cowessess
First Nation #73 Custom Election Act [“Elections Act”] are the
applicable law or required procedures governing the matters in question;
2. an order in the nature of quo
warranto that the respondent does not validly hold the office of Chief of
Cowessess First Nation and that he be prohibited from continuing to usurp the
office and functions of Chief of Cowessess First Nation;
3. an order that a by-election to fill
the position of Chief of the Cowessess First Nation be held in accordance with
the Election Act, and that the remaining applicant Councillors of
Cowessess First Nation (or alternatively the Councillors of Cowessess First
Nation) will facilitate all steps required under the Election Act to
ensure that said by-election takes place;
4. a declaration that any official acts
purported to be taken by the respondent Lavallee as Chief of Cowessess First
Nation after July 27, 2013 are null and void and of no effect;
5. a declaration that any purported
Band Council resolution passed by the Council after July 27, 2013, where quorum
for a purported Council meeting was five and purported to be achieved by
counting the respondent Lavallee as a member of the Council, are null and void
and of no effect;
6. a declaration that, according to the
custom of the band, Malcolm Delorme is the Acting Chief of Cowessess First
Nation until such time as the position of Chief is filled by way of
by-election; and
7. orders in the nature of mandamus,
prohibition, quo warranto, and certiorari, as may be
necessary in order to give effect to the relief herein requested and the relief
as this Honourable Court may deem appropriate.
[4]
Mr. Edward Aisaican, Mr. Walter Pelletier, Mr.
William Tanner, Ms. Valerie Tanner, and Mr. Terrence Lavallee are named as the
Respondents (the “Respondents”).
[5]
The Applicants, other than Ms. Ferguson, and the
Respondents, other than Mr. Terrence Lavallee, are Councillors of the CFN Band
Council. Ms. Ferguson is a member of CFN but not a Councillor. Mr. Lavallee is
currently the Chief of the CFN, following an election on April 27, 2013.
[6]
In that election the Applicants, apart from Ms.
Ferguson, and the Respondents, apart from Mr. Lavallee, were elected as members
of the CFN Band Council. Mr. Lavallee was elected as Chief of the CFN.
II.
THE EVIDENCE
[7]
The evidence in this matter was submitted by way
of affidavits and transcripts of cross-examinations.
[8]
The Applicants filed the affidavits of Mr. Kevin
Delorme, Mr. Malcolm Delorme, Ms. Dodie Ferguson, Mr. Curtis Lerat, and Ms.
Carol Lavallee. The Applicants provided two affidavits from Mr. Kevin Delorme,
the first sworn to on August 20th, 2013 and the second sworn to on October
23rd, 2013.
[9]
In his first affidavit Mr. Kevin Delorme
describes the events leading up to this application. He describes the
Respondent Mr. Terrence Lavallee’s residency situation, including the dispute
with Ms. Adrienne Sparvier about the occupancy of Unit 134 on the Reserve, and
the contentious votes at Band Council meetings. Attached as exhibits to his
affidavit are an extract from the minutes of the June 17th, 2013 Band Council
meeting, a copy of the Election Act, and a copy of the Chief and Council
Governance Policy.
[10]
In his second affidavit, Mr. Kevin Delorme
describes his communications with Mr. Curtis Lerat, an employee of CFN. The
communications were related to Mr. Terrence Lavallee’s residence on the Reserve
and whether he had been allocated a home or had a legal claim to occupy Unit
134. A number of emails between Mr. Kevin Delorme and Mr. Curtis Lerat are
attached as exhibits to that affidavit.
[11]
The Affidavit of Ms. Dodie Ferguson was sworn to
on August 20th, 2013. Ms. Ferguson is a member of CFN. Her affidavit describes
a conversation with the Respondent Ms. Valerie Tanner about the eviction of Ms.
Adrienne Sparvier from Unit 134. In that conversation Ms. Dodie Ferguson
indicated concerns about the legality of the eviction of Ms. Sparvier, and also
concerns about some of the governance decisions made by the Band Council. Ms. Dodie
Ferguson also communicated to Ms. Valerie Tanner the concerns of Ms. Adrienne
Sparvier regarding her eviction.
[12]
Ms. Ferguson notes that CFN is currently subject
to a Recipient Managed Management Action Plan with the Department of Aboriginal
Affairs and Northern Development Canada. She expresses concern that a failure
to follow this plan will lead to either an Expert Resource Support Management
Action Plan or Third Party Management, either of which would reduce the
autonomy of CFN.
[13]
Mr.Curtis Lerat executed his affidavit on August
20th, 2013. He was employed as Tenant Relations Officer with the Cowessess
Housing Department prior to Mr. Lavallee’s election as Chief. In his affidavit
he describes his duties in that position, the number of unoccupied houses on
the Reserve, and his knowledge that Mr. Terrence Lavallee has not been assigned
a house on the Reserve. He also describes his actions in researching the
leasing history of Unit 134 and some of Mr. Terrence Lavallee’s efforts to
evict Ms. Adrienne Sparvier from that unit.
[14]
Mr. Lerat also discusses dismissal from his
employment on August 16th, 2013 and his belief that this dismissal was
politically motivated in relation to the dispute over Mr. Lavallee’s residency.
Attached as an exhibit to his affidavit is a letter to Mr. Malcolm Delorme that
Mr. Lerat claims he wrote, but did not sign, confirming that as of July 29th,
2013 Mr. Lavallee did not have a house in his name on the CFN Reserve.
[15]
The affidavit of Ms. Carol Lavallee was sworn to
on October 16th, 2013. In that affidavit she briefly describes her attendance
at the Band Council meeting of September 25th, 2013. She describes Mr. Kevin
Delorme’s motion for a by-election and the defeat of that motion.
[16]
The affidavit of Mr. Malcolm Delorme was sworn
to on August 20th, 2013. He describes the events leading up to the current
application, including a description of the contested election of April 27th,
2013, the dispute about Mr. Lavallee’s residency and the contentious Band
Council and community meetings on that subject.
[17]
Mr. Malcolm Delorme also describes how he came
to fill the position of Acting Chief. He provides evidence about the Recipient
Managed Management Action Plan and the financial situation of CFN. He describes
a mortgage loan agreement arranged by Mr. Terrence Lavallee, between CFN and a
company called USand group. It is Mr. Malcolm Delorme’s opinion that Mr.
Lavallee has placed himself in a conflict of interest situation as a result of
this arrangement, and the mortgage loan agreement will place the financial
interests of the First Nation and its members in danger.
[18]
The Respondents filed the affidavits of Mr.
Terrence Lavallee, Mr. Walter Pelletier, Ms. Valerie Tanner, Mr. William
Tanner, Mr. Edward Aisaican, and Ms. Shelley Fairbairn. They also filed the
cross-examinations of Mr. Terrence Lavallee, Ms. Carol Lavallee, Mr. Malcolm
Delorme, Mr. Kevin Delorme, and Mr. Curtis Lerat.
[19]
The affidavit of Mr. Terrence Lavallee was sworn
to on September 13th, 2013. In it he disputes much of the evidence provided in
the affidavits filed by the Applicants and provides his perspective on the
events leading up to this application. He describes his election as Chief and
provides evidence about the traditional aboriginal definition of “take up
permanent residence”.
[20]
Mr. Lavallee also describes the housing dispute
with Ms. Adrienne Sparvier, and describes the arrangement between CFN and the
USand Group. He provides evidence about the non-renewal of certain teachers’
contracts, and alleges that Counsel for the Applicants is in a conflict of
interest as he also represents teachers whose contracts were not renewed by CFN.
He proceeds to describe actions taken by the Applicants, such as locking the
doors to the Band Council office, which he describes as intimidation or harassment.
[21]
Mr. Lavallee also provides evidence as to CFN’s
relationship with the Department of Aboriginal Affairs and Northern Development
Canada, and states that they are not currently in danger of going into Third
Party Management. A number of exhibits are attached to his affidavit in support
of his evidence.
[22]
The affidavit of Mr. Walter Pelletier was sworn
to on September 13th, 2013. Mr. Pelletier provides evidence as to the events
that took place at the meeting of the Band Council of July 30th, 2013, organized
by Mr. Malcolm Delorme as Acting Chief. Mr. Pelletier deposes that he only
attended this meeting for approximately four minutes, and once he realized
attempts were being made to bring motions he left, on the basis that in his
opinion the meeting was illegal.
[23]
Mr. Pelletier provides evidence that it is
customary for the Chief to call meetings. He did not stay long enough to hear a
full motion nor did he vote on any motion put forward at that meeting. Mr.
Pelletier also describes visiting Unit 134 with the RCMP and Mr. Terrence
Lavallee on August 29th, 2013 in an attempt to evict Ms. Adrienne Sparvier. He
confirms that Ms. Sparvier continues to occupy Unit 134.
[24]
In her affidavit, sworn to on September 13th,
2013, Ms. Valerie Tanner provides evidence of her talks with Ms. Dodie
Ferguson. She speaks of discussing the non-renewal of teaching contracts and
the elimination of community committees, as well as the housing situation of
Ms. Adrienne Sparvier. She denies stating that it was Ms. Sparvier’s responsibility
to go to court if she was unhappy with the eviction. It is her evidence that
based on Band tradition and custom, as well as provisions of CFN’s Housing
Policy, occupation of Unit 134 should revert to Mr. Terrence Lavallee.
[25]
The affidavit of Mr. William Tanner was sworn to
on September 13th, 2013. In this affidavit Mr. Tanner describes a conversation
with Ms. Carol Lavallee on September 3rd, 2013 when he asked Ms. Lavallee why
incorrect evidence was placed in the Applicants’ affidavits about a motion
regarding a by-election on October 22nd, 2013. It is the evidence of Mr. Tanner
that Ms. Lavallee responded that there had been no such motion.
[26]
In his affidavit, sworn to on September 13th,
2013, Mr. Edward Aisaican confirms that he attended the Band Council meeting of
June 27th, 2013 and seconded the motion to allocate Unit 134 to Mr. Terrence
Lavallee. He deposes that Ms. Adrienne Sparvier moved into the house on the day
of the election, and based on Band custom, the circumstances of Mr. Lavallee’s
earlier eviction from the unit and his payment of any arrears, the unit should
be allocated to him. It is the evidence of Mr. Aisaican that Mr. Terrence
Lavallee intended to make Unit 134 his permanent residence.
[27]
The affidavit of Ms. Shelley Fairbairn was sworn
to on October 25th, 2013. Ms. Fairbairn is a court reporter from Regina who attended the Band Council meeting of September 25th, 2013 and transcribed the
proceedings. Attached to her affidavit as exhibits are a transcript of that
meeting, the agenda of the meeting, the Housing Portfolio Report discussed at
the meeting, and a letter regarding CFN and its SaskTel Services Account.
[28]
The Applicants filed a transcript of the
cross-examination of Mr. Terrence Lavallee. The cross-examination focuses
largely on Mr. Lavallee’s residence and his understanding of the difference
between a non-aboriginal interpretation of permanent residence and a
traditional aboriginal interpretation of permanent residence.
[29]
The Respondents filed the cross-examinations of
Ms. Carol Lavallee, Mr. Malcolm Delorme, Mr. Kevin Delorme and Mr. Curtis
Lerat. Those cross-examinations took place on October 25th, 2013 and relate to
the material contained in the affidavits filed by those individuals.
III.
BACKGROUND
[30]
The facts below are taken from the affidavits,
including the exhibits, filed by the parties.
[31]
Mr. Lavallee had resided in a house, that is
Unit 134, on the Reserve prior to 1992. However, in 1992 he was evicted for
failing to pay the rent on the home. He claims that the primary motivation for
his eviction was political, but does not deny that he did not pay the rent on
the house. He no longer has a home on the reserve and lives in Regina. Mr. Lavallee maintains farmland that he works on the Reserve, and keeps his farming
equipment on that land.
[32]
The house that Mr. Lavallee lived in prior to
1992 was re-allocated to another member of CFN after his eviction. Despite
having what he submits is a traditional claim to the house and land, Mr.
Lavallee was told by former Chiefs and Band Councils that he no longer had a
claim to that house. The current occupant of that house, Ms. Adrienne Sparvier,
had been allocated Unit 134 by the former Chief and Band Council. As of the
Band Council meeting on June 17, 2013, she was in arrears for non-payment of
rent in relation to the house.
[33]
On June 17th, 2013, a motion was passed by the
Band Council evicting Ms. Adrienne Sparvier from Unit 134. The original vote
was tied, with four Band Councillors in favour and four against. Mr. Terrence
Lavallee, as Chief, cast the deciding vote in favour of the motion evicting Ms.
Sparvier from Unit 134. On July 11, 2013, Ms. Sparvier appealed the decision to
evict her. That appeal was dismissed on August 19th, 2013.
[34]
On July 19th, 2013, at a Band Council meeting,
the Applicant Kevin Delorme brought a motion to transfer Unit 134 to Mr.
Lavallee. Mr. Delorme claims that the motion was brought on the condition that
Mr. Lavallee bring documents to the Band Council demonstrating his legal claim
to the property before July 27th, 2013. There is some dispute about whether
these conditions were a requirement for the transfer of the property. In any
event, the motion was passed with 7 votes for, none against. Two other motions
were passed at that meeting, one to allow Mr. Lavallee to install power in his
name at Unit 134 and one to allocate that property to him through a Band Council
resolution. These motions were passed with 4 votes in favour, 2 against.
[35]
For reasons that are not known, Ms. Sparvier
refused to vacate Unit 134. Mr. Lavallee was unable to take up occupancy of
that property. On July 27th, 2013, three months after Mr. Lavallee’s election
as Chief, the Applicant Malcolm Delorme approached him and encouraged him to
call a meeting to discuss issues with respect to his residency and the Election
Act. Mr. Lavallee refused to call a meeting.
[36]
Mr. Malcolm Delorme shortly afterward confirmed
that Mr. Lavallee had not been allocated a house on the Reserve and called a
Band Council meeting. That meeting was held on July 30, 2013 and was attended
by Mr. Malcolm Delorme and the other Applicant Councillors. One of the
Respondents, Mr. Walter Pelletier, at some point during that meeting came and
took his seat at the Council table.
[37]
At that point, the Applicant Councillors
realized that they had reached a quorum, that is five persons, for an official
Band Council meeting. A motion was brought to uphold and enforce the Elections
Act. According to the Applicants, Mr. Walter Pelletier was the sole vote
against the motion. Mr. Pelletier denies that the meeting was a valid Band
Council meeting and denies voting on the motion.
[38]
On August 3rd, 2013 a special community meeting
was held with members of CFN in attendance. The Applicants attended that
meeting. The CFN members discussed the Election Act and its residency
requirements. They voted to uphold the Election Act and demanded that Mr. Malcolm
Delorme take up the position of Acting Chief. His eligibility for the position
of Acting Chief, according to the Applicants, was based on a local custom that
the Councillor who received the highest number of votes in the last election
becomes Acting Chief when the position of Chief is vacated.
[39]
A Band Council meeting was held on August 9th,
2013, at which all of the Applicants and Respondents were present. As Chief,
Mr. Lavallee assumed the position of chair of the meeting. The Applicants
stated that they did not recognize Mr. Lavallee as Chief as his office was
vacant by operation of the Election Act. Mr. Kevin Delorme requested that Mr.
Lavallee step down and appoint a new chair in his place. Mr. Lavallee refused
that request.
[40]
Mr. Kevin Delorme then brought a motion calling
for a resolution that a by-election be held to fill the vacant position of
Chief of CFN. That motion was seconded by Mr. Malcolm Delorme. The motion was
ruled out of order by Mr. Lavallee and the Respondents refused to vote on it.
The Applicants then left the meeting in protest, and the Respondents carried on
with Band Council business.
[41]
The Applicants brought a motion for an
injunction against the Respondents that would restrain Mr. Lavallee from
performing the duties of or holding himself out as Chief of CFN. That motion
was adjourned sine die by Justice Harrington on September 18, 2013, on
the condition that Mr. Lavallee provide an undertaking to the Court that he
would allow a vote to take place on the issue of whether a by-election should
be called.
[42]
A meeting of the Band Council took place on
September 25th, 2013. Mr. Kevin Delorme brought a motion to call a by-election
for the position of Chief. That motion was seconded by Mr. Malcolm Delorme.
Voting took place and was tied with four Councillors in favour, four against.
All of the Applicants voted in favour, and all of the Respondents, apart from
Mr. Lavallee, voted against. Mr. Lavallee abstained from the vote. Due to the
tied vote, the motion died and was, in effect, defeated.
[43]
The decision that is challenged by the
Applicants, that is a vote by the Band Council, does not contain reasons. The
motion that was voted on, as moved by Mr. Kevin Delorme, reads as follows:
Kevin Delorme: I’ll make that motion in regards
to Article 14 of the Custom Election Act and for the fact that Terrence
Lavallee didn’t obtain residency by the 27th of July, and for the fact that
their dispute resolution was recognized only on August 2nd, I would like to put
the motion that we call a by-election.
Carol Lavallee: And the chief’s position being
empty.
Kevin Delorme: For the chief’s position, which
should have been deemed vacant July 27th.
[44]
The Band Council did not discuss the motion or
the meaning of the Election Act provisions in any detail. The vote was held and
the motion was defeated.
IV.
ISSUES
[45]
Two issues arise in this proceeding:
i)
What is the appropriate standard of review?
ii)
Does the decision of the Band Council meet the
applicable standard?
V.
SUBMISSIONS
(a)
Applicants’ Submissions
[46]
The Applicants argue that the appropriate
standard of review is correctness since the question raised involves the
interpretation of the Election Act. The Applicants submit that the tribunal,
that is the Band Council, failed to interpret the relevant provisions of the
Election Act and accordingly, the standard of correctness applies, as discussed
by the Federal Court of Appeal in York v. Lower Nicola Indian Band,
[2013] 2 C.N.L.R. 388 at paragraph 6.
[47]
The Applicants argue that the Election Act is
clear. A Chief who does not reside on the Reserve must take up permanent
residence on the Reserve within three months of their election. Failure to do
so renders the position of Chief vacant. There is no provision in the Election
Act that allows the Band Council to relieve the Chief of this requirement.
[48]
The Applicants submit that if the three month
deadline is not met, the position of Chief is vacant by operation of law and
the Band Council must call a by-election within 90 days of the vacancy. Their
only discretion is with respect to the exact date of the by-election within the
90 day period. As the position of Chief was vacant, the Band Council could not
refuse to call a by-election.
[49]
Furthermore, the Applicants submit that the
interpretation urged by the Respondents with respect to an alternative,
traditional aboriginal meaning of the concept of taking up permanent residence
does not withstand scrutiny. The Applicants argue that Mr. Lavallee’s
explanations of this alternative meaning were inconsistent, contradictory, and
changed continually over the course of his cross-examination. It is the
position of the Applicants that taking up permanent residence requires that the
individual move to the Reserve and set up and maintain his principal place of
residence there.
[50]
The Applicants further argue that the dispute
with Adrienne Sparvier over Unit 134 did not extend the period of time in which
Mr. Lavallee had to take up permanent residence. If it did, it would have
extended the period to September 7th, 2013, at the latest.
[51]
They submit that the evidence is clear that even
as of that late date Mr. Lavallee had not taken up permanent residence on the
Reserve. Mr. Lavallee has failed to meet the deadline to take up permanent
residency provided for in the Act. The Applicants submit that this failure has
rendered the position of Chief vacant, and the Band Council is required to call
a by-election.
(b)
Respondents’ Submissions
[52]
The Respondents, on the other hand, submit that the
questions in issue involve a question of mixed fact and law. Accordingly, on
the basis of the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190 at paragraph 53, reasonableness is the applicable standard of review.
[53]
As well the Respondents argue that in
interpreting its home statute, that is the Election Act, the Band Council is
entitled to a high degree of deference, which attracts the reasonableness
standard; see the decision in Alberta (Information and Privacy Commissioner)
v. Alberta Teachers’ Association, [2011] 3 S.C.R. 654.
[54]
The Respondents also submit that the authorities
relied on by the Applicants in urging a correctness standard are easily
distinguishable. The authorities cited by the Applicants do not address the
relevant Supreme Court of Canada jurisprudence and do not stand for the
proposition that correctness review is applicable. The Respondents argue that
the proper guiding authority is Fort McKay First Nation Chief and Council v.
Orr (2012), 438 N.R. 379. The standard of reasonableness in this case is
sufficient to protect the Court’s position as a guarantor of administrative
fairness.
[55]
The Respondents argue that the Election Act is
not a complete code governing CFN elections. Band custom has a role to play.
The Election Act must be interpreted as a whole, and the Applicants improperly
rely on the requirements of ordinary residence to inform an interpretation of
permanent residence. According to the Respondents these are two different
concepts relating to different Band Council members.
[56]
The Respondents note that permanent residency is
not defined in the Election Act. They argue that this omission is intentional,
and the meaning of permanent residency is to be inferred from band custom and
tradition.
[57]
The Respondents argue that Band traditions with
respect to consensual governance and the right to occupy hereditary,
traditional lands are important to an understanding of the concept of permanent
residence. There is a critical difference between the traditional aboriginal
understanding of permanent residency and a non-aboriginal understanding. The
Respondents submit that, according to Band custom and tradition, permanent
residency is dependent primarily upon long-term intention.
[58]
Further, the Respondents submit that the concept
of permanent residency under the Election Act should be assessed in a manner
consistent with the common law concept of domicile. At common law, it is not
necessary to reside physically in a place in order to show domicile there; see
the decision in Foote Estate, Re, [2011] 6 W.W.R. 453 at paragraph 19.
Similarly, the Respondents argue that under the traditional understanding of
CFN, permanent residence does not require physical occupancy.
[59]
In any event, the Respondents submit that the
evidence demonstrates that Mr. Terrence Lavallee has taken up permanent
residence on the Reserve. He intends to reside on the Reserve at Unit 134 on
his traditional land. He was born on that land, which is connected with four
generations of his ancestors. These objective actions by Mr. Terrence Lavallee
form an unassailable foundation upon which the Band Council based its September
25th, 2013 decision that he had taken up permanent residency. That decision was
reasonable and this application for judicial review should be dismissed.
VI.
DISCUSSION AND DISPOSITION
[60]
The first matter to be addressed is the
applicable standard of review. As outlined above, the parties take different
views on that issue, the Applicants arguing in favour of correctness and the
Respondents in favour of the standard of reasonableness.
[61]
The Applicants rely on the Federal Court of
Appeal’s decision in York, supra, for the proposition that the
Band Council’s decision should be reviewed on the standard of correctness. In
my opinion, their argument is flawed. That case involved issues of procedural
fairness, which are reviewable on the standard of correctness. In the present
application, there are no concerns raised about procedural fairness and the
correctness standard does not apply.
[62]
The substantive issue in this application is
whether the Respondent Mr. Lavallee meets the residency requirements of the
Election Act in order to remain in position as Chief of CFN. The answer depends
upon interpretation of the relevant provisions of the Election Act and the
application of that interpretation to the facts. This is a question of mixed
fact and law. According to the decision in Dunsmuir, supra at paragraph
53, such a question is reviewable on the standard of reasonableness.
[63]
The Federal Court of Appeal has confirmed that
where a Band Council interprets and applies a custom election code, such as the
Election Act, reasonableness is the applicable standard of review; see the
decision in Orr, supra, at paragraphs 10 and 11.
[64]
Justice Stratas’ comments at paragraph 12 of Orr,
supra are instructive:
In the circumstances, however, the distinction
between the two standards of review is most narrow. If the Council's decision
to suspend Mr. Orr as a councillor by way of resolution alone cannot be
supported by the words of the Election Code or any other source of
power, the decision cannot be said to be acceptable or defensible on the law. I
now turn to this issue.
[65]
In this case, the range of acceptable outcomes
available to the Band Council is narrow: either Mr. Terrence Lavallee took up
permanent residence on the Reserve within the required timeframe and within the
meaning of the Election Act and he is Chief of CFN, or he did not take up
permanent residence and the position of Chief is vacant, requiring a
by-election.
[66]
Three provisions of the Election Act are
relevant to the issue of “residency”, that is Articles 5.01(b), 12.03 and
13.01(a)(v), which provide as follows:
ARTICLE 5- ELIGIBILITY
or the purpose of this Act:
[…]
(b) any Elector may seek nomination as a
Candidate in any Election or By-Election for the position of Chief regardless
of their place of residence, however, in accordance with the provisions of
section 11.03 hereof, any individual who may be successful in obtaining office
to the position of Chief and who is ordinarily resident off the Home Reserve at
the time of conducting of the Election or By-Election shall be required to take
up permanent residence on the Home Reserve within three (3) months following
their assumption of office.
[…]
ARTICLE 12 - ASSUMPTION OF OFFICE
[…]
12.03 Any Candidate who is successful in
obtaining election to the position of Chief shall be required to take up
permanent residency on the Home Reserve within three (3) months following their
assumption of office, and maintain their residency on the Home Reserve for the
duration of their term of office.
[…]
ARTICLE 13 - VACANCIES AND REMOVAL FROM OFFICE
[…]
13.01 Following assuming of office by the
Council pursuant to section 12.02 above, the office of Chief, Resident
Councillor or Non-Resident Councillor shall only be deemed to be vacant when:
(a) the person occupying such office:
[…]
(v) in the context of the Chief's position,
fails to take up or maintain their residency on the Home Reserve as required
pursuant to the provisions of this Act following their assumption of office;
[67]
Article 5.01(b) is clear, on its face. It
requires that a person who is elected Chief, if not resident on the Reserve at
the time of the election, must take up permanent residence on the Reserve within
three months of assuming the office of Chief.
[68]
Article 12.03 is also unambiguous, requiring the
successful candidate for Chief to assume permanent residence on the Reserve
within three months of taking office. This provision also requires the Chief to
maintain, that is continue, residency on the Reserve during the term of holding
the office of Chief.
[69]
Article 13.01(a)(v) is equally clear in its
terms. It provides that the office of Chief is deemed to be vacant if the
successful candidate fails to take up permanent residence within three months of
assuming office.
[70]
On the basis of the evidence submitted, Mr.
Lavallee resides in Regina. He has access to farmland on the Reserve but he
does not live on the Reserve.
[71]
The evidence about the availability of Unit 134
is, in my opinion, irrelevant. The fact that Unit 134 was unavailable to Mr.
Lavallee, for whatever reason, is not responsive to the obligation created by
the Election Act that a person occupying the position of Chief is required to
reside on the Reserve.
[72]
Even if such evidence were relevant, in my
opinion the Respondents err in arguing that the delay within which Mr. Lavallee
had to establish permanent residency was suspended by the election appeal and
the housing dispute with Ms. Sparvier.
[73]
The Election Act provides for no exceptions. The
three month time period runs from the time the Chief assumes office. By his own
admission, in his affidavit filed in this proceeding, Mr. Terrence Lavallee
assumed office on April 27th, 2013. He had 3 months from that date to take up
permanent residence on the Reserve, pursuant to Article 12.03.
[74]
The Respondents have argued that a broad
interpretation should be given to the residency requirements of the Election
Act, that is an interpretation based on a traditional aboriginal definition of
permanent residence.
[75]
The problem with this argument is that the only
evidence of a traditional customary definition of permanent residence is found
in the affidavit of Mr. Lavallee. This affidavit is obviously self-serving and
of little probative value. In effect, there is no reliable evidence to support
this argument.
[76]
I am mindful of the importance of tradition and
custom when interpreting First Nation election codes, such as the Election Act.
I am also mindful of the direction of the Supreme Court of Canada that within the
context of aboriginal law, the traditional rules of evidence should be modified
or relaxed; see the decision in Delgamuukw v. British Columbia, [1997] 3
S.C.R. 1010 at paragraph 98. That does not mean, however, that the rules of
evidence can be completely ignored. I am not satisfied that the Respondents
have adduced sufficient evidence to demonstrate a traditional understanding of
permanent residence.
[77]
The Respondents’ reliance on the traditional
common law concept of domicile is misplaced. There is nothing to suggest that
this concept is relevant to a determination of permanent residence, and is
contradictory to their arguments in favour of a traditional aboriginal
understanding of permanent residence.
[78]
The word “reside” is capable of more than one
meaning, according to the context in which it is used. In this regard I refer
to the decision in Sifton v. Sifton, [1938] 3 D.L.R. 577 at paragraph 27
where the Judicial Committee of the Privy Council said the following:
Their Lordships’ attention was called during
the arguments to numerous authorities in which the Court has been called upon
to consider the meaning of the words reside and residence and the like. But
these authorities give their Lordships no assistance in construing the present
will. The meaning of such words obviously depends upon the context in which the
words are used.
[79]
In my opinion, the relevant provisions of the
Election Act, properly interpreted, require the physical presence of the Chief
on the Reserve. The fact that the Election Act allows a period of time, that is
three months, for a person to “take up” permanent residence supports the
interpretation of a physical presence. The three months constitutes a grace
period to allow a person to move on to the Reserve.
[80]
Despite the Respondents’ submissions to the
contrary, the record demonstrates that Mr. Lavallee has not taken up permanent
residence on the reserve. The Election Act does not mention intent or steps
taken to obtain permanent residency, nor does it mention traditional lands. The
permanent residency requirement has not been met, and Mr. Lavallee did not take
up permanent residence on the Reserve within the three month time period
required by the Election Act.
[81]
In my opinion, this finding is determinative of
the application.
[82]
The failure to establish residence on the
Reserve within three months of assuming office triggers Article 13.01(a)(v) of
the Election Act, as cited above. That Article mandates that when a person who
is elected Chief does not take up permanent residence as required by the
Election Act, the position of Chief is deemed to be vacant.
[83]
Mr. Lavallee failed to take up permanent
residence on the Reserve within three months of taking office as Chief.
Pursuant to the application of the relevant provisions of the Election Act, the
position is deemed to be vacant. Mr. Lavallee filled the position of Chief for
three months after taking office on April 27, 2013. He was not legally the
Chief as of July 27, 2013.
[84]
Article 14.01 of the Election Act sets out the
requirements for a by-election when a position on the Band Council becomes
vacant. That Article provides as follows:
ARTICLE 14- BY-ELECTIONS
[…]
14.0.1 When for any reason a position on the
Council becomes vacant pursuant to the provisions of Articles 12 and 13 hereof,
the remaining members of the Council shall, as soon as possible, designate a
date for a By-Election which shall be held within ninety (90) days following
the event which resulted in the vacancy. Unless otherwise stipulated herein,
all provisions respecting eligibility and procedures with respect to the
conducting of Elections shall apply equally to any By-Elections undertaken
pursuant to this Act.
[85]
The Election Act provides that when a position
on the Band Council becomes vacant for any reason, the vacancy is to be filled
following a by-election. The Band Council lacks the discretion to waive calling
a by-election in the case of such a vacancy. Article 14.01 requires the Band
Council to call a by-election within 90 days of a position becoming vacant. The
position of Chief became vacant, by operation of law, on July 27, 2013. The
Band Council’s decision not to call a by-election to fill the vacant position
of Chief was unreasonable.
[86]
In conclusion, there is simply insufficient
evidence to support the interpretation of the Election Act urged by the
Respondents. Mr. Lavallee has not taken up permanent residency on the Reserve
and, pursuant to the Election Act, the position of Chief is vacant.
[87]
The decision of the Band Council is quashed and
the Band Council is directed to set a date for a by-election in accordance with
the Election Act.
[88]
The Applicants have succeeded and are entitled
to costs. Both parties have requested costs on a solicitor and client basis if
successful in this proceeding. According to the decision in Canadian Assn.
of Broadcasters v. Canada, [2009] 1 F.C.R. 3, such an award should not be
made in the absence of submissions from the parties.
[89]
Accordingly, the parties can make submissions,
the submissions on behalf of the Applicants to be served within seven (7) days
of receipt of the Judgment in this matter, responding submissions to be filed
within five (5) days of receipt of the Applicants’ costs submissions.
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