Date:
20130617
Docket: A-38-13
Citation: 2013
FCA 159
CORAM: PELLETIER J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
CHIEF
RICHARD HORSEMAN
Appellant
and
HORSE LAKE FIRST NATION
COUNCILLOR
ALLAN HORSEMAN, COUNCILLOR BRIAN
HORSEMAN,
COUNCILLOR MICHAEL HORSEMAN AND
COUNCILLOR EUGENE HORSEMAN
Respondents
Heard at Edmonton, Alberta, on June 10, 2013.
Judgment delivered at Ottawa, Ontario, on June
17, 2013.
REASONS FOR JUDGMENT BY: MAINVILLE
J.A.
CONCURRED
IN BY: PELLETIER
J.A.
TRUDEL J.A.
Date:
20130617
Docket: A-38-13
Citation: 2013 FCA 159
CORAM: PELLETIER
J.A.
TRUDEL
J.A.
MAINVILLE
J.A.
BETWEEN:
CHIEF RICHARD HORSEMAN
Appellant
and
HORSE LAKE FIRST NATION
COUNCILLOR
ALLAN HORSEMAN, COUNCILLOR BRIAN
HORSEMAN,
COUNCILLOR MICHAEL HORSEMAN AND
COUNCILLOR EUGENE HORSEMAN
Respondents
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
The
appellant is the Chief of the Horse Lake First Nation, a band within the
meaning of the Indian Act, R.S.C. 1985, c. I-5. He has brought an
application for judicial review in the Federal Court claiming that the
respondent councillors of the First Nation improperly convened a special
meeting of the band council on December 3, 2012 and, at that meeting,
improperly removed his spouse from her position with a band controlled
corporation and withdrew her signing authorities for that corporation.
[2]
Shortly
after filing his application for judicial review, the appellant brought a
motion for an interim injunction pursuant to Rule 373 of the Federal Courts
Rules, SOR/98-106 requiring the First Nation to restore banking and signing
authorities as they were, to stay all dismissals of staff, stay all contracts
with companies owned by band councillors, to pay per capita distributions
equally to all band members, and to provide notice of all meetings of the band
council and band controlled corporations to the appellant.
[3]
This
motion for an interim injunction was dismissed by De Montigny J. (the “Judge”)
in an unreported order dated January 10, 2013. The Judge found that he did not
have jurisdiction to grant the requested injunction, and that, in any event,
the test for an interlocutory injunction set out in RJR-MacDonald Inc. v.
Canada (Attorney General), [1994] 1 S.C.R. 311 had not been met. The
appellant now appeals to our Court.
[4]
Under
section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7, but subject
to section 28, the Federal Court has exclusive original jurisdiction to issue
an injunction, writ of certiorari, writ of prohibition, writ of mandamus
or writ of quo warranto, or grant declaratory relief, against any
federal board, commission and other tribunal, and to hear and determine any
application or other proceeding for similar relief against a federal board,
commission or other tribunal.
[5]
The
focus of judicial review is to quash invalid government decisions or require
government to act or prohibit it from acting by a speedy process. Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585
(“TeleZone”) at para. 26. Judicial review suits the litigant who wishes
to strike quickly and directly at the action (or inaction) complained about: Ibid.
As noted in TeleZone at para. 32, the Federal Courts Act is
designed to enhance government accountability as well as to promote access to
justice, and it should be interpreted in such a way as to promote those
objectives.
[6]
It
has long and consistently been held that a band council is a federal board
contemplated by section 18 of the Federal Courts Act: Canatonquin v.
Gabriel, [1980] 2 F.C. 792 (C.A.); Sebastian v. Saugeen First Nation No.
29, 2003 FCA 28, [2003] 3 F.C. 48 at para. 51. The Federal Court’s
jurisdiction under section 18 extends not only to the band council, but also to
the individual chief and councillors acting, or purporting to act, in their
official capacity: Lake Babine Band v. Williams (1996), 194 N.R. 44, 61
A.C.W.S. (3d) 256 (F.C.A.); Salt River First Nation 195 (Council) v. Salt
River First Nation (2003), [2004] 1 C.N.L.R. 319 (F.C.A.).
[7]
In
this case, based on his claim that the band council meeting at which certain
resolutions were adopted was improperly called and held, the appellant sought
declaratory and injunctive relief against the band councillors acting in their
official capacity under the Indian Act. Prima facie, this is a matter
over which the Federal Court has exclusive jurisdiction.
[8]
However,
it appears from the record before the Judge that what was described as a band
council meeting was in fact a meeting of the board of directors of a band
controlled corporation designated the Horse Lake First Nation Industrial
Relations Corporation (“IRC”). IRC is incorporated under the laws of the Province of Alberta; its only issued common share is held in trust by the band council of
the Horse Lake First Nation; and its directors are the chief and councillors of
the First Nation. A dispute has developed concerning the use of IRC funds for
the purposes of Sunrise Logging (1229128 Alberta Ltd.), a corporation owned or
controlled by the appellant and his spouse. Judicial proceedings related to
this dispute are currently pending in the provincial courts.
[9]
Within
the context of this dispute, the majority of the respondent councillors called
a meeting of the board of directors of IRC to be held on December 3, 2012. The
written notice of this meeting of the IRC board of directors was provided to
the appellant, who in fact attended the meeting. The sole business carried out
at the meeting was to remove the spouse of the appellant from her functions
with IRC. However, the minutes of this meeting of the board of directors of IRC
were drawn up with the title “Horse Lake First Nation Chief & Council
Meeting”. Based on the limited record before the Judge, this misnomer appears
to have been the result of a clerical error.
[10]
The
Judge found that “the actions that are the subject of these proceedings relate
to meetings and decisions of the directors of the IRC”. The impugned meeting of
December 3, 2012 was thus found to be a meeting of the IRC’s board of directors
in the course of which the appellant was outvoted by the other directors. Since
a corporation incorporated under provincial law is not a federal board,
commission or other tribunal, and since there was no evidence that, at the
meeting, the corporation was purporting to exercise powers conferred by or
under an Act of Parliament, this alone was sufficient for the Judge to dismiss
the motion for an interim injunction on the ground of lack of jurisdiction.
[11]
I
would consequently dismiss the appeal with costs.
“Robert
M. Mainville”
“I
agree
J.
D. Denis Pelletier J.A.”
“I
agree
Johanne
Trudel J.A.”
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