Date: 20130205
Docket: A-376-12
Citation: 2013 FCA 26
CORAM: EVANS
J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
THE LOWER NICOLA
INDIAN BAND
Appellant
and
CHIEF VICTOR YORK
Respondent
REASONS
FOR JUDGMENT
STRATAS
J.A.
[1]
Chief Victor York appeals from the judgment of the Federal Court (per
Justice Near) dated July 31, 2012: 2012 FC 949. The Federal Court set aside a
resolution of the Council of the Lower Nicola Indian Band, passed on November
1, 2011. That resolution purported to remove the Chief from office.
[2]
Although the Federal Court had concerns about whether Council
provided the Chief with procedural fairness, it chose to base its ruling upon
the reasonableness of Council’s decision. It found that it was impossible to
assess reasonableness because the basis upon which Council made its decision
was unknown.
[3]
I would dismiss the appeal but for different reasons from those of
the Federal Court.
[4]
The removal of the Chief from office is governed by the Custom
Election Rules, article 34(c). That article provides:
34. Should a
Member of Council
(c) fail to fulfil his
responsibilities as a member of Council for a period of more than 30 days after
having received written notice to that effect from the Council, then that
member of Council may be immediately removed from office by the passing of a
Band Council Resolution to that effect and a by-election shall be called immediately
thereafter pursuant to Section 24 above.
[5]
This article is the only way in which a Chief can be removed. It
is precise and clear. No provisions in the Custom Election Rules allow
for a relaxation of the mandatory 30 day notice period set out in article 34(c).
Another governing document, the Policy and Procedures of Chief and
Councillors (1997), provides for the suspension of a Chief, but not
removal.
[6]
There is no indication that Council attempted to interpret article
34(c) and discern its requirements and so the reasonableness standard that
normally applies to Band interpretations of provisions in election codes (e.g.,
Fort
McKay First Nation v. Orr,
2012 FCA 269) does not apply here. Simply put, there is no interpretation to
which this Court can defer. Further, decisions concerning the content of
procedural fairness are subject to correctness review: C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at paragraph 100. In my view, on either standard of review, Council’s resolution
cannot be sustained in light of article 34(c) and the common law of procedural
fairness.
[7]
In my view, article 34(c) and the common law of procedural
fairness mean that Council can only remove a Chief in the following manner:
● Council must give written notice of the failure
to fulfil responsibilities, with particulars.
● The notice must state that a failure to fulfil
responsibilities over the next 30 days could result in a resolution for
removal. While I consider this to be implied in the wording of article 34(c)
and consistent with its purpose, it is also a common law procedural fairness requirement
in cases where, as here, the consequences are high and the common law standard
has not been legislatively excluded: see Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R.
817 at paragraph 25; Nicholson v. Haldimand-Norfolk Regional Police
Commissioners, [1979] 1 S.C.R. 311 at
page 328.
● After the Chief has had 30 days’ opportunity to
fulfil his responsibilities, the Chief is given a meaningful opportunity to
make representations in some form to Council (see Nicholson, supra),
and Council has considered the facts and representations made, Council can pass
a resolution for removal, if, in its view, it is warranted and appropriate.
● If Council passes a resolution for removal,
immediately thereafter it must consider whether to call a by-election under article
24 of the Custom Election Rules.
[8]
These requirements are similar to those advanced by the Chief in
the Federal Court and in this Court. The appellant did not seriously contest
these requirements.
[9]
The appellant submitted that Council gave the Chief many written
notices about his conduct throughout 2011 and these notices sufficed. However, in
my view, none of these notices complied with the above requirements.
[10]
In argument before us, the appellant confirmed that only two
notices to the Chief mentioned the possibility of removal: a letter dated March
9, 2011 and a letter dated October 18, 2011. I shall offer observations
concerning these. Then I shall offer observations concerning another letter –
stressed by the appellant in argument to be proper notice – a letter dated
September 28, 2011.
[11]
The letter dated March 9, 2011 alluded to the possibility of the
Chief’s removal, but it did not provide that a failure to fulfil
responsibilities over the next 30 days could result in removal. Instead, it
notified the Chief that Council had passed a motion to investigate his conduct,
it set out a number of concerns including breach of fiduciary duty – the only "
breach" mentioned – and warned that if the investigation found "breaches",
Council would "follow through with steps required to suspend or impeach as
per the LNIB Custom Election Rules". On a fair construction,
the letter of March 9, 2011 did no more than threaten that, following
completion of the investigation, Council might begin the article 34(c) process.
[12]
As for the October 18, 2011 letter – the only other letter to have
discussed the Chief’s removal – Council seems to have regarded it as the
primary instrument of notice to the Chief. This is evident from the wording of
the November 1, 2011 resolution:
WHEREAS the duly elected Council of the
Lower Nicola Band ("the Council") has sent correspondence, dated
October 18, 2011 (attached), to Victor York, Chief;
AND WHEREAS Victor York, Chief, did not
respond to the October 18, 2011, correspondence; nor did he attend the meeting
scheduled on October 25, 2011 to address the allegations contained in the
October 18, 2011 correspondence;
AND WHEREAS the Council have met in a
duly convened special meeting to conclude its investigation of the potential
breaches and transgressions by Victor York, in his capacity as the duly elected
Chief of the Lower Nicola Band – those potential breaches and transgressions as
listed in the previous mentioned October 18, 2011 correspondence;
…
THEREFORE BE IT RESOLVED, effective on
the below noted date [November 1, 2011], the Council do impeach, resign, and
remove Victor York as Chief of the Lower Nicola Indian Band, based on the
evidence in the October 18, 2011 correspondence.
[13]
However, the October 18, 2011 letter falls short of the
requirements set out above. It did not place the Chief on notice that his failure
to fulfil responsibilities over the next 30 days could result in a resolution
for removal. Also it is dated 14 days before the November 1, 2011 resolution: the
Chief was not given 30 days to cure his alleged default. I would add that for
much of the 14 days period, Council had suspended the Chief and so he could not
cure his alleged default.
[14]
As mentioned above, in argument the appellant also relied heavily
upon another letter, the September 28, 2011 letter Council sent to the Chief. This
letter is dated 34 days before the November 1, 2011 resolution. However, this letter
falls well short of the requirements set out above. It said nothing about removing
the Chief from office. Nor did it place the Chief on notice that a failure to fulfil
responsibilities during the next 30 days would result in a possible resolution
for removal. Instead, the September 28, 2011 letter informed the Chief that he
had been suspended for 30 days and warned that a “further investig[ation]”
would take place.
[15]
Therefore, for the foregoing reasons, I conclude that Council failed
to follow the procedures required to remove a Chief from office. Accordingly,
the November 1, 2011 resolution cannot stand.
[16]
In the circumstances, it is unnecessary to consider whether Council’s
decision to remove the Chief was reasonable, i.e., within a range of
acceptability and defensibility on the facts and the law: see Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190 at paragraph 47. I express
no comment on the Federal Court’s reasons on this point.
[17]
These reasons deal only with the procedural shortcomings in the
case. Nothing in these reasons should be taken as expressing any view
concerning the conduct of the Chief leading up to Council’s passage of the
resolution.
[18]
For these reasons, I would dismiss the appeal. The Chief seeks
solicitor and client costs here and below. There is no conduct on the part of
the appellant warranting such an award. Nevertheless, costs should follow the
event. Accordingly, I would grant the Chief his costs on the normal scale here
and below.
"David
Stratas"
“I agree
Eleanor R. Dawson J.A.”
“I agree
John M. Evans J.A.”
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