Docket: T-790-16
Citation:
2016 FC 658
Ottawa, Ontario, June 14, 2016
PRESENT: The Honourable Mr. Justice Bell
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BETWEEN:
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MICHAEL ARNOLD
CACHAGEE
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Applicant
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and
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MARILYNE DOYLE (NEE GAGNON), IN HER CAPACITY AS ELECTORAL OFFICER;
PATRICIA TANGIE, IN HER CAPACITY AS DEPUTY ELECTORAL OFFICER; STEPHANIE
SCOTT, IN HER ROLE AS RETURNING OFFICER FOR CHAPLEAU CREE FIRST NATION, JOHN
DOE, IN HIS ROLE AS MEMBER OF THE APPEAL BOARD; AND JOHN DOE, IN HIS ROLE AS
MEMBER OF THE APPEAL BOARD FOR CHAPLEAU CREE FIRST NATION;
CHIEF KEITH CORSTON, CHIEF OF CHAPLEAU CREE FIRST NATION;
CHAPLEAU CREE FIRST NATION (CCFN)
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Respondents
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ORDER AND REASONS
[1]
Michael Arnold Cachagee [Mr. Cachagee] brings a
motion for an interlocutory injunction setting aside the nomination process
and corresponding election of the Chapleau Cree First Nation to be held on June
10, 2016, until the underlying application for judicial review can be heard. My
only authority on this matter extends to deciding whether to grant the
interlocutory injunction.
[2]
Mr. Cachagee contends he was appropriately
nominated to run as a candidate in the planned elections for the Chapleau Cree
First Nation. He claims that he was duly nominated as a candidate for one of
two “on-reserve counsellor [sic]” positions on April 9, 2016, at a duly-called nominating
meeting. At that meeting, the Electoral Officer and the Returning Officer expressed
concerns about whether Mr. Cachagee met the residency requirements. However, no
negative decision was made regarding his eligibility. He claims that any
challenges to his nomination should have been made and resolved at that meeting.
However, events did not unfold in that manner.
[3]
On April 13, 2016, Mr. Cachagee received notice
that his nomination had been rejected because he did not meet the residency
requirement of the Chapleau Cree First Nation People’s Election Code. He filed
an appeal on April 18, 2016. The appeal was rejected on April 25. Mr. Cachagee
claims that he sought, but did not receive, the names of the members of the
appeal panel. He also claims the appeal panel received material regarding his
residency which was not made available to him. To adopt the language of his
lawyer, Mr. Cachagee considers the appeal process to have been tantamount to
proceedings before a “Star Chamber”.
[4]
Without Mr. Cachagee’s name on the ballot,
ballots were sent out on April 27 to the voting members of the Chapleau Cree
First Nation People. Those members include 372 off-reserve voters and 49
on-reserve voters. Advance polling occurred on June 4, 2016.
[5]
Since the nomination process has already taken
place, I have no jurisdiction to grant any interlocutory injunction with
respect to that procedure. The only remedy I can provide to Mr. Cachagee at
this time is to respond positively to his request for an interlocutory
injunction halting the election. I do note, however, that issues surrounding
the nomination process are appropriately considered by me in considering this
application for an injunction.
[6]
Mr. Cachagee must meet the requirements of the three-part
test as set out in RJR-MacDonald Inc v Canada (Attorney General), [1994]
1 SCR 311, and other cases which constitute relatively trite law in our
common and aboriginal law environment in Canada today. Essentially, that
three-part test requires Mr. Cachagee to establish a serious issue to be tried,
that he will suffer irreparable harm if the injunction is not granted, and that
the balance of convenience favours the granting of the injunction.
[7]
In this case, I am satisfied that Mr. Cachagee
raises a serious issue to be tried. If nothing else, setting aside for the
moment the reason for his rejection as a candidate, the issue of whether one
can leave a nomination meeting nominated as a candidate only to find out
approximately four or five days later that one’s candidacy has been rejected
raises a serious question to be tried. Similarly, in this case, whether one is
entitled to the identity of the appeal panel and information concerning when it
is deliberating, who is deliberating, and whether or not it is receiving
additional information not available to Mr. Cachagee raises a serious issue to
be tried.
[8]
With respect to the issue of irreparable harm,
the harm must be irreparable to Mr. Cachagee. Although the law may be divergent
on what remedies, if any, are available to Mr. Cachagee in these circumstances,
I am not satisfied that the harm is irreparable to him at this stage or in the
future. In this regard, I take would cite and adopt the approach set out in Gopher
v Saulteaux First Nation, 2005 FC 481, [2005] FCJ No 599, cited by counsel
for the respondents.
[9]
I am of the view that Mr. Cachagee’s right to
challenge this election continues. I am of the view that a Court fully informed
of all of the factors would have the jurisdiction to determine the legality of
this election and craft an appropriate remedy should it conclude the electoral
process to have been unlawful at any stage, including the nomination process.
Because of that view, I fail to see the irreparable harm to Mr. Cachagee.
[10]
Given that the three-part test is conjunctive, I
need not deal with the issue of balance of convenience and normally would not
do so where I have concluded one of the conditions has not been met. However,
in these circumstances, I consider it appropriate that Mr. Cachagee and the respondents
understand one of my concerns with respect to the balance of convenience. Simply
stated, as one says in the vernacular, “the horse is
out of the barn”. The ballots were issued on April 27, and some have
been returned. Similarly, the advance polling has already occurred. The
election is well underway, with the election to be held on June 10 simply being
the third and final stage of the balloting process. To grant an injunction at
this stage would, in my view, be misguided. The balance of convenience favours
the concluding of the balloting scheduled for June 10 in order that the
business of the Chapleau Cree First Nation can be conducted. Whatever remedy
Mr. Cachagee wishes to seek with respect to the results of that election are
not altered in any manner by my conclusion here today.
[11]
In summary, while I consider there to be a
serious issue to be tried, in fact several serious issues to be tried, I am not
satisfied that Mr. Cachagee has established irreparable harm or that the
balance of convenience favours the granting of the injunction.
[12]
I turn now to costs. While the matter will be
more fully examined by the Court on judicial review, I have had the benefit of
hearing counsel for Mr. Cachagee and the Chapleau Cree First Nation, and I have
read the affidavit evidence. While that evidence may be subject to
cross-examination on a future hearing, I am left with a perception of how
events unfolded at the nominating process and subsequent thereto. The
respondents contend that costs should be awarded against Mr. Cachagee, not only
because he is the losing party, but also because of the multitude of defendants
he has named in his pleading. Mr. Cachagee resists the claims for costs, in
part, contending that he had to bring action against a number of parties
because he could not even determine the identity of the members of the appeal
panel. In the circumstances, I am not of the view that the motion should not
have been brought, nor am I of the view that it is frivolous and vexatious. I
therefore make no award of costs.
ORDER
THIS COURT ORDERS that
this motion for an interlocutory injunction in docket number T-790-16 be dismissed without costs.
“B. Richard Bell”
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