Docket: T-1401-16
Citation:
2016 FC 1081
Victoria, British Columbia, September 21, 2016
PRESENT: The Honourable Mr. Justice Fothergill
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BETWEEN:
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MORGAN PERRY
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Applicant
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and
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COLD LAKE FIRST
NATIONS,
CHIEF AND
COUNCIL, AND ALLAN ADAM, ELECTORAL OFFICER FOR COLD LAKE FIRST NATIONS
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Respondents
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ORDER AND REASONS
UPON THE MOTION dated September 16, 2016 brought on behalf
of the Respondent Cold Lake First Nations, Chief and Council [CLFN Chief and
Council] for:
(a)
an order adding Mr. Allan Adam, Electoral
Officer for Cold Lake First Nations, as a Respondent; and
(b)
an interim and/or interlocutory injunction preventing
Mr. Adam from holding a new election for the CLFN Council pending final
determination by this Court of the application for judicial review;
AND UPON reading the
materials filed and hearing counsel for the CLFN Chief and Council, counsel for
Mr. Perry, and Mr. Adam on his own behalf, by teleconference on September 21,
2016;
AND CONSIDERING that Mr.
Perry takes no position on the motion brought on behalf of the CLFN Chief and
Council, and endorses the legal analysis advanced on behalf of the CLFN Chief
and Council in support of the relief sought;
AND CONSIDERING the following:
[1]
On June 22, 2016, an election was held for Chief
of the CLFN. On June 29, 2016, an election was held for Council of the CLFN.
Mr. Perry contested his removal from the list of candidates for election to the
CLFN Council on the ground that he had been improperly excluded based on his
residency.
[2]
On August 11, 2016, the CLFN Appeal Committee,
constituted under the CLFN Election Law, released a report of its decisions
regarding several complaints it had received. The Appeal Committee upheld Mr.
Perry’s complaint. Despite finding no irregularity in the conduct of the election,
the Appeal Committee concluded that the CLFN Election Law was deficient insofar
as it excludes certain candidates and voters based on their residency, descendancy,
and age.
[3]
The Appeal Committee directed the Electoral
Officer, Mr. Adam, to hold a new accelerated election for Council, adding Mr.
Perry as a candidate. Mr. Adam subsequently informed the CLFN Chief and Council
that he intended to carry out the Appeal Committee’s direction and hold a new
election for Council on August 25, 2016.
[4]
On August 18, 2016, the CLFN Chief and Council
adopted a Band Council Resolution rejecting the Appeal Committee’s direction
that a new election be held. Mr. Adam was advised by the CLFN Chief and Council
that his duties as Electoral Officer had been fulfilled and his services were
no longer required.
[5]
On August 22, 2016, Mr. Perry filed an
application for judicial review of the decision of CLFN Chief and Council to
issue the Band Council Resolution rejecting the Appeal Committee’s direction
that a new election for Council be held.
A.
Whether Mr. Adam
Should be added as a Respondent
[6]
Rule 104(1)(b) of the Federal Court Rules,
SOR/98-106 provides that the Court may, at any time, order that a person be
added as a party who ought to have been joined as a party or whose presence
before the Court is necessary to ensure that all matters in dispute in the
proceeding may be effectually and completely determined. The Court’s discretion
is guided by one test alone: necessity (Air Canada v Thibodeau, 2012 FCA
14 at para 11).
[7]
I am satisfied that Mr. Adam’s participation in
Mr. Perry’s application for judicial review is necessary to ensure the
effective and complete resolution of the dispute. The central question raised
by the application for judicial review is whether the Appeal Committee acted
within its jurisdiction when it directed Mr. Adam to hold a new election for
Council. Mr. Adam relies on the direction of the Appeals Committee as his
authority to call a new election. It is, therefore, imperative that Mr. Adam be
bound by the result of the application for judicial review.
B.
Whether the
Motion for Injunctive Relief should be Granted
[8]
The granting of interlocutory injunctive relief
is governed by the tri-partite test in RJR – MacDonald Inc v Canada
(Attorney General), [1994] 1 S.C.R. 311 at 334 [RJR – MacDonald]. The
test requires the moving party to demonstrate that there is a serious issue to
be tried, that irreparable harm not compensable by damages will result if the
injunction is not granted, and that the balance of convenience, taking into account
the public interest, favours the status quo.
[9]
The parties agree that there is a serious issue
to be tried. The threshold is low: the issue must be neither frivolous nor
vexatious. Whether the Appeal Committee has authority to direct the Electoral
Officer to conduct a new election, or whether its role is only to advise the
CLFN Chief and Council of its decisions on complaints, raises a serious issue (Grandbois
v Cold Lake First Nation, 2013 FC 1039; Jacko v Cold Lake First Nation,
2014 FC 1108).
[10]
The parties also agree that irreparable harm not
compensable by damages will occur unless the injunction is granted. A new
election for Council would have the effect of creating uncertainty within the
CLFN regarding the legitimacy and authority of the current Council. As Justice
Blanchard observed in Buffalo v Bruno, 2006 FC 1220 at paragraph 15, this
would “serve to further undermine the election process,
the very corner stone of democratic institutions. In this sense, the harm could
not be remedied and is consequently irreparable” (see also Prince v
Sucker Creek First Nation No 150A, 2008 FC 479 at para 32).
[11]
Finally, I am satisfied that the balance of
convenience favours preserving the status quo. The interests of the CLFN
community are best served by granting the injunction sought until Mr. Perry’s
application for judicial review is decided on its merits (Buffalo v Rabbit,
2011 FC 420 at para 37). In addition, the Applicant, Mr. Perry, takes no
position on the motion for injunctive relief, and endorses the legal analysis
advanced by the CLFN Chief and Council.
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