Docket: T-658-15
Citation:
2015 FC 1194
Ottawa, Ontario, October 22, 2015
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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VIRGINIA GLADUE
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Applicant
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and
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DUNCAN’S FIRST NATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review,
pursuant to section 18.1 of the Federal Courts Act, RSC 1985 c 41, of
the decision of the Band Council of Duncan’s First Nation [Council] dated April
21, 2014 suspending Virginia Gladue, the Applicant, from Council.
[2]
For the reasons that follow, this application is
dismissed.
I.
Background
[3]
On July 15, 2013, Virginia Gladue was elected as
Councillor of the Duncan’s First Nation. Her term of office is for three years.
[4]
The Council is composed of three councillors:
Chief Don Testawich, the chief’s brother, Councillor Tony Testawich, and the
Applicant, Councillor Virginia Gladue. It is apparent from the affidavit
evidence that Duncan’s First Nation is currently dealing with issues
surrounding financing and record-keeping. However, these issues are not the
subject of this judicial review.
[5]
On March 4, 2015, the Council unanimously
adopted the Western Cree Tribal Council Governance Administrative Policies and
Procedures Manual at a Council meeting through a Band Council Resolution [the
Policy BCR]. This document includes a Leadership & Governance Enforcement
Policy [the Policy].
[6]
On April 10, 2015, proceeding under the Policy,
Chief Testawich provided notice by letter to the Applicant and to the
Councillor Testawich of a special council meeting to be held on April 14, 2015 in
camera to review nine concerns respecting the Applicant’s conduct as a
councillor [the Special Council Meeting]. The Applicant requested that the
meeting be rescheduled to give her more time to address the allegations made in
the notice and questioned Council’s intention to hold the meeting in camera.
[7]
On April 14, 2015, the Applicant was provided
with notice that the Special Council Meeting had been rescheduled to April 21,
2015 but that it would still be held in camera and without legal counsel
to facilitate “an open and honest dialogue” with
a view to resolving the concerns that has been raised. On April 15, 2015, the
Applicant advised that she still objected to the meeting being held in
camera, that she was seeking legal advice and that the meeting would have
to await engagement of her legal counsel. The Applicant was advised later that
day that the re-scheduled meeting would proceed. The Applicant did not attend
the Special Council Meeting.
[8]
As a result of the Special Council Meeting, the
Council passed a Band Council Resolution [BCR], suspending the Applicant from
Council with pay pending investigation into her conduct as a councillor.
[9]
The Applicant initiated this judicial review
application on April 27, 2015. On May 11, 2015, Justice Annis granted an
interlocutory injunction that enjoined the Council from suspending the
Applicant from her elected position as councillor and ordered that she be
reinstated with all benefits and privileges attached to that position until the
completion of this judicial review. On June 3, 2015, Council rescinded the
suspension.
II.
Issues and Standard of Review
[10]
While the Applicant’s Memorandum of Fact and Law
does not explicitly identify a list of issues, her Notice of Application seeks
the following relief:
A.
An Order declaring the suspension dated on or
about April 22, 2014 removing her from Council to be null and void under the
Duncan First Nation Custom Election Regulations and the law respecting
democratic office of Councillors;
B.
An Order declaring the in camera Special
Council Meeting held on April 21, 2015 to be contrary to the law respecting
public meetings of First Nations Councils, contrary to democratic government in
Canada and contrary to natural justice and procedural fairness;
C.
An Order declaring that Band Council Resolution
dated March 4, 2015 purporting to adopt the “Western
Cree Tribal Council Governance and Administrative Policies and Procedures
manual” does not refer to a document and is accordingly void;
D.
An Order declaring that Band Council Resolution
dated March 4, 2015 does not apply to democratically elected Councillors;
E.
In the alternative and in any event, an Order
declaring that the Band Council Resolution dated March 4, 2015 is not
retroactive and does not apply to events that took place prior to its passage
as a Band Council Resolution;
F.
An interlocutory injunction restoring Virginia
Gladue to her position on Council and removing her suspension; and,
G.
Costs of this proceeding to Virginia Gladue on a
solicitor-client basis against the Duncan’s First Nation.
[11]
In her Memorandum of Fact and Law, the Applicant
repeats her request for this relief, with the exception of the request to
declare her suspension null and void and to restore her to her position on
Council, as Council had already rescinded the suspension on June 3, 2015.
[12]
In its Memorandum of Fact and Law, the Respondent raises the following issues to be considered in this
application:
A.
This application is moot and should be dismissed
without considering the issues proposed in the Applicant’s memorandum;
B.
The in camera Special Council Meeting
held on April 21, 2015 was not contrary to Canadian common or statute law,
natural justice or procedural fairness;
C.
The Policy established internal disciplinary
procedures that may result in sanctions short of removal that apply to all
members of the Duncan’s First Nation council in all disciplinary proceedings
started after March 4, 2015 and is not void;
D.
The Applicant’s continued challenge to in
camera Special Council Meetings and the validity and meaning of the Policy
has been so clearly without merit and contrary to the Canadian and Duncan’s
First Nation common and statute law that the Applicant should be awarded no
further costs and, instead, the Applicant should be ordered to pay the
Respondent’s post June 3, 2015 costs, on a solicitor-client or elevated basis.
[13]
I would characterize the issues as follows:
A.
Are the Orders sought by the Applicant moot?
B.
If not, did the Council act reasonably in
holding an in camera hearing and applying the Policy in arriving at the
decision to suspend the Applicant?
C.
What should be the disposition of costs in this
application?
[14]
The Applicant’s position is that the applicable
standard of review is correctness, because this application involves interpretation
of the Policy BCR, which amounts to an exercise in statutory interpretation,
and considerations of procedural fairness surrounding her conflict of interest
arguments. The Respondent takes the position that the applicable standard of
review respecting Council’s procedural decisions and the interpretation and
application of Duncan’s First Nation’s laws is reasonableness.
III.
Positions of the Parties
A.
Applicant’s Submissions
[15]
The Applicant refers to the principles surrounding
the analysis of mootness as advanced in Borowski v Attorney General of
Canada [1980] 1 S.C.R. 342 [Borowski], noting
that often in circumstances involving governance of First Nations, important
issues are raised that are evasive of review.
[16]
The Applicant submits that although the Council has
rescinded her suspension, the majority of issues raised in this judicial review
remain as issues affecting the elected position that she holds as Councillor.
[17]
First, regarding the in camera meeting, the
Applicant argues that there are no provisions in the Duncan’s First Nation
Custom Election Regulations, under which the Council is elected, providing
for removal of a Councillor that apply in these circumstances. There is also no
provision in the Indian Act RSC, 1985, c I-5 or the Indian Band
Council Procedure Regulations CRC, c 950 for a meeting of the Council to be
held in camera.
[18]
The Applicant also submits that it is a
fundamental provision of democracy that the legislative process be public. As
such, no BCR can be passed at an in camera meeting, and the Council
cannot review the actions of a Councillor at such a meeting, as this is the
role of the voters during an election.
[19]
Second, the Applicant submits that the Policy BCR
is meaningless as it purports to adopt the “Western
Cree Tribal Governance and Administrative Policies and Procedure Manual”
as the policy framework for Duncan’s First Nation. However, there is no document
by that precise name. Further, the Applicant argues that the Western Cree
Tribal Council is a society incorporated under the Societies Act, R.S.A.
2000, c. S-14 and that provisions applicable to a corporation should not apply
to a legislative body such as the Council.
[20]
Third, the Applicant argues that the Policy BCR
cannot be applied retroactively. There is nothing in any of the Council’s
Resolutions stating that they apply retroactively, and this must be specified
if legislation is to be retroactive (Petersen v Kupnicki 1996 ABCA 323 [Petersen]
at para 19).
[21]
Fourth, she argues that administrative polices such
as the Policy do not apply to councillors.. She argues that, if statements made
by a Councillor are defamatory, then the method of reviewing them is an action
for defamation, not to have them reviewed at an in camera special
meeting.
[22]
At the hearing of this application, the Applcant
bolstered this argument by asserting that it represented a conflict of interest
for Council to address her alleged misconduct, because Chief Testawich and
Councillor Testawich had personal interests in these allegations.
B.
Respondent’s Submissions
[23]
The Respondent submits that the Borowski test
for exercising the Court’s discretion to hear and decide moot cases should not
result in such an exercise of discretion in this case. The issues that the
Applicant is asking the Court to decide on are not independent issues of public
interest or issues respecting the interpretation of a First Nation’s governance
or other substantive law. The Applicant is not asking the Court to interpret a
statute which may have changed or restricted the Canadian common law of
legislative and deliberative assemblies. Rather, she is seeking changes
generally and in a factual vacuum, absent any specific legislation or
government context.
[24]
On the merits, the Respondent submits that it is
an established practice for Council to hold Council meetings or parts of
Council meetings in camera to discuss personnel and legal matters. The
Applicant is aware of this practice, as she has attended several meetings
between January 20, 2015 and March 25, 2015, where the Applicant seconded
motions to go in camera.
[25]
The Respondent also argues that holding meetings
in camera is a common law power and procedural practice available to all
legislative assemblies and deliberative bodies and societies that follow
parliamentary procedures (Anson, The Law and Custom of the Constitution
(Oxford: Clarendon Press: 1911), pp. 161-162). Further, the Respondent submits
that the Indian Band Council Procedure Regulations made under the Indian
Act do not apply to the Council, which is elected under customary laws pursuant
to the Duncan’s First Nation Custom Election Regulations, not under the Indian
Act. There is no Duncan’s First Nation law or custom that purports to
change or limit the common law rights or powers of the Council to hold meetings
in camera when circumstances warrant it.
[26]
The Respondent notes that the meeting did not
breach any procedural fairness requirements, as notice was sent to all members
of Council including the Applicant.
[27]
The Respondent further submits that Council has
the power to discipline its own members and the power to establish procedures
for disciplining its own members. This power is no different, absent statutory
restrictions, from those exercised by municipal councils and societies (Prince
v Sucker Creek First Nation, 2008 FC 1268 at para 31). The Applicant was at
the March 4, 2015 Council meeting, voted for and signed the Policy BCR adopting
those disciplinary procedures.
[28]
The Respondent explains that the “Western Cree Tribal Council Governance and Administrative
Policies and Procedure Manual” is the colloquial name of the document
that was adopted in the Policy BCR and notes that a copy of this document was
attached to the Policy BCR, such that there is no ambiguity as to what was
adopted. The Respondent also argues that its use was not retroactive as it did
not change any of the Applicant’s substantive rights
[29]
The Respondent’s position is that using the
Policy to commence a proceeding does not breach the presumption against
retroactivity applied in Petersen, as it merely provided the Applicant
with clarity respecting the procedure that would be followed in determining
what consequences, if any, might be appropriate after she had explained her
conduct.
IV.
Analysis
[30]
My decision is that this application should be
dismissed as moot.
[31]
The parties both rely on Borowski for the
principles governing the Court’s analysis of mootness. In the recent decision in Harvan v Canada (Minister of Citizenship and Immigration) 2015
FC 1026, Justice Diner
succinctly outlined the relevant principles to be derived from Borowski:
[7] The test for mootness comprises a two-step analysis. The first step
asks whether the Court's decision would have any practical effect on solving a
live controversy between the parties, and the Court should consider whether the
issues have become academic, and whether the dispute has disappeared, in which
case the proceedings are moot. If the first step of the test is met, the second
step is — notwithstanding the fact that the matter is moot — that the Court
must consider whether to nonetheless exercise its discretion to decide the
case. The Court's exercise of discretion in the second step should be guided by
three policy rationales which are as follows:
i. the presence of an adversarial context;
ii. the concern for judicial economy;
iii. the consideration of whether the Court
would be encroaching upon the legislative sphere rather than fulfilling its
role as the adjudicative branch of government.
(See Borowski v Canada (Attorney General),
[1989] 1 S.C.R. 342 at paras 15-17, and 29-40 [Borowski])
[32]
The Applicant’s position is that each of the two
steps in the required analysis favours the Court deciding this application on
its merits. On the first step, she refers to the various arguments she has
raised, and declarations sought in her Notice of Application, as representing
live controversies between the parties. While there is no doubt that the
parties take very different positions on those issues, I do not consider that
to give rise to a situation where a decision by the Court on the merits of their
respective arguments will have a practical effect on solving a live
controversy. In Borowski,
the Supreme Court referred to the necessity to determine whether the requisite
tangible and concrete dispute has disappeared, rendering the issues academic.
In that respect, the concrete dispute between the parties was the Applicant’s
challenge of the Council’s April 22, 2015 decision to suspend her from Council,
which dispute was resolved when the suspension was rescinded by Council on June
3, 2015 following the issuance of the interlocutory injunction by Justice
Annis.
[33]
What then remained were the arguments raised by
the Applicant in support of her challenge of the suspension. However, a
decision on these arguments will not have the effect of resolving some controversy
which affects or may affect the rights of the parties. As such, applying the
first step of the Borowski analysis, this application is moot as failing to meet the “live controversy” test.
[34]
This case is distinguishable from the
authorities relied on by the Applicant. Aboriginal Peoples Television
Network v Canada (Human Rights Commission), 2011 FC 810 involved a judicial
review of a decision by the Canadian Human Rights Commission not to grant the
applicant Network access to a particular complaint proceeding. The issue of
mootness was raised because the Commission dismissed the complaint for lack of
jurisdiction before the judicial review was decided. However, the Court reached
the conclusion that there was a live controversy between the parties, because
the Commission’s jurisdictional decision had itself been challenged by judicial
review and had therefore not been finally resolved. There is no similar context
in the case at hand.
[35]
The Applicant also relies on Attawapiskat
First Nation v Her Majesty the Queen in Right of Canada, 2012 FC 948 [Attawapiskat].
Although the impugned appointment of a Third Party Manager had been withdrawn,
the Court held that its determination of the legality of such appointment would
have a practical effect on the rights of the parties, such as responsibility
for the fees drawn by the Manager and the legality of his actions in
administering the First Nation’s funds. There is no comparable residual effect
of the rescinded suspension upon the parties in the case at hand. The Court in Attawapiskat
also noted that the interpretation of the default and remedy provisions of
the Comprehensive Funding Agreement that the applicant had put in issue
remained a live controversy and that other funding agreements between the
Government and First Nations contained similar provisions. These factors do not
apply in the present case, as there is no indication in the record that the
issues raised by the Applicant, which relate to the narrow context of the
Council’s entitlement and process to suspend a councillor, will surface in
future disputes between them or involving the band councils of other First
Nations.
[36]
After providing these reasons, the Court in Attawapiskat stated
that, even if the proceeding was technically moot, it
would rely on those reasons to exercise its discretion to decide the issues
raised. It was there referring to the second step of the Borowski
analysis which, in the absence of a live controversy between the parties to the
present application, requires consideration whether the Court should
nevertheless exercise its discretion to decide the issues raised.
[37]
As noted above, the facts underlying the
decision in Attawapiskat are distinguishable from the case at hand.
While the Court in Attawapiskat would have relied on those facts to exercise its discretion under
step two of the Borowski analysis, the present case does not
involve facts that favour such a decision. As explained in Borowski,
the three policy rationales to be considered under step two are the presence of an adversarial context, the concern for judicial economy,
and consideration of whether the Court would be encroaching upon the
legislative sphere rather than fulfilling its role as the adjudicative branch
of government.
[38]
I have no difficulty concluding that the necessary
adversarial relationship exists in this application. Despite the fact that the
Applicant’s suspension has been rescinded, she has continued to pursue
vigorously the other relief sought in this application. I also have no concern
that rendering a decision on the substantive issues raised in this application
would encroach upon the legislative sphere, as the applicant is not seeking
relief that would amount to legislative pronouncements. However, in considering
the concern for judicial economy, and in particular the expansion upon that
rationale provided in Borowski, my conclusion is that this is not an appropriate case for me to
exercise my discretion to pronounce on the merits of the issues raised. At
pages 360-361 of Borowski, the Supreme Court explained the following:
The concern for conserving judicial
resources is partially answered in cases that have become moot if the court's
decision will have some practical effect on the rights of the parties
notwithstanding that it will not have the effect of determining the controversy
which gave rise to the action. The influence of this factor along with
that of the first factor referred to above is evident in Vic Restaurant Inc. v.
City of Montreal, supra.
Similarly an expenditure of judicial
resources is considered warranted in cases which although moot are of a
recurring nature but brief duration. In order to ensure that an important
question which might independently evade review be heard by the court, the
mootness doctrine is not applied strictly. This was the situation in International
Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders'
Exchange, supra. The issue was the validity of an interlocutory
injunction prohibiting certain strike action. By the time the case
reached this Court the strike had been settled. This is the usual result
of the operation of a temporary injunction in labour cases. If the point
was ever to be tested, it almost had to be in a case that was moot.
Accordingly, this Court exercised its discretion to hear the case. To the
same effect are Le Syndicat des Employés du Transport de Montréal v.
Attorney General of Quebec, 1970 CanLII 192 (SCC),
[1970] S.C.R. 713, and Wood, Wire and Metal Lathers' Int. Union v. United
Brotherhood of Carpenters and Joiners of America, 1973 CanLII 135 (SCC),
[1973] S.C.R. 756. The mere fact, however, that a case raising the same
point is likely to recur even frequently should not by itself be a reason for
hearing an appeal which is moot. It is preferable to wait and determine
the point in a genuine adversarial context unless the circumstances suggest that
the dispute will have always disappeared before it is ultimately resolved.
There also exists a rather ill-defined basis
for justifying the deployment of judicial resources in cases which raise an
issue of public importance of which a resolution is in the public
interest. The economics of judicial involvement are weighed against the
social cost of continued uncertainty in the law. See Minister of
Manpower and Immigration v. Hardayal, 1977 CanLII 162 (SCC),
[1978] 1 S.C.R. 470, and Kates and Barker, supra, at pp.
1429-1431. Locke J. alluded to this in Vic Restaurant Inc. v. City of
Montreal, supra, at p. 91: "The question, as I have said, is one of
general public interest to municipal institutions throughout Canada."
[39]
None of the circumstances canvassed in this
explanation apply to this application. A decision by the Court on the merits
of the moot issues will not have any practical effect on the rights of the parties.
These issues also cannot be characterized as being of a recurring nature but
brief duration or, for that reason or others, raising important questions which
might otherwise evade review by the Court. Nor do they raise issues of public
importance. The declarations sought by the Applicant relate to narrow issues
surrounding the internal governance of the Council in the context of particular
disagreements among its three members. There is no indication that those issues
will resurface between the parties or that, if they did, they would not then be
capable of review and determination in the context of a live controversy.
[40]
Certainly the retroactivity issue appears unlikely to resurface. I also
note that the evidence demonstrates that the Applicant took no issue with the
use of in camera sessions prior to the meeting at which she was
suspended, and that the Policy BCR had been unanimously approved by all
Councilors including the Applicant. In the event the members of Council do in
the future diverge on the use of these governance vehicles, that divergence is
best resolved in the context of whatever specific dispute develops.
[41]
There is also no indication that these issues
will resurface in the context of the governance of other First Nations. In this
respect, the decision in Esquega v Canada (Attorney General), 2007 FC
878, relied upon by the Applicant, is distinguishable, as the Court in that
case relied on evidence that the constitutionality of the impugned electoral
residency requirement would be evasive of review and that the governance of
First Nations across Canada had suffered due to uncertainties as to the
validity of this requirement. No comparable considerations exist in the present
application.
[42]
It is accordingly my conclusion that this
application is moot and that this is not an appropriate case for the Court to
exercise its discretion to decide the substantive issues argued by the
Applicant.
V.
Costs
[43]
The Applicant sought costs on a solicitor-client
basis, relying on authority for such awards where individual members have
brought judicial review applications involving the interpretation of First
Nations’ governance laws and their application.
[44]
The Respondent argues that there is no
reprehensible, scandalous or outrageous conduct by the Council that would warrant
awarding solicitor-client costs to the Applicant. It further submits that,
having pursued an unmeritorious and moot judicial review application, the
Applicant should be subject to a costs award on a solicitor-client or elevated
basis.
[45]
The Respondent having prevailed in this
application on the issue of mootness, it is entitled to an award of costs.
Notwithstanding my decision on mootness, the Applicant had an arguable, albeit
ultimately unsuccessful, position that the Court should exercise its discretion
to decide the issues raised. On that basis, I do not consider the authorities,
relied upon by the Respondent in support of its request for solicitor-client or
increased costs, to apply to the present application.
[46]
At the hearing, I asked counsel to advise if the
parties had a position on appropriate quantification of costs if they were not
awarded on a solicitor-client basis. The Respondent, while maintaining that
solicitor-client costs should be awarded, suggested that costs in accordance
with Column III of the Tariff B Table, from June 3, 2015, would be an
appropriate approach if the Court chose to award party-and-party costs instead.
I adopt this approach to quantification and award the Respondent
party-and-party costs on this basis.
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