Date: 20130429
Docket: A-102-13
A-101-13
Citation: 2013 FCA 114
Present: MAINVILLE
J.A.
BETWEEN:
Docket:
A-102-13
GEORGE ASSINIBOINE, MARVIN
DANIELS and
RUTH ROULETTE
Appellants
and
DENNIS
MEECHES
Respondent
BETWEEN:
Docket: A-101-13
DAVID
MEECHES
Appellant
and
DENNIS
MEECHES
Respondent
REASONS FOR ORDER
MAINVILLE J.A.
[1]
The
appellants
are seeking to stay the judgment of Russell J. of the Federal Court dated
February 26, 2013 (citation number 2013 FC 196) which declared that the Long
Plain First Nation Election Appeal Committee (“Election Appeal Committee”) had
made a final and binding decision requiring new elections for the offices of
Chief and Council, and that all relevant parties were bound by and must comply
with that decision.
BACKGROUND
[2]
The
Long
Plain First Nation (“First Nation”) is a band within the meaning of the Indian
Act, R.S.C. 1985, c. I-5. It is governed by a Chief and four councillors
elected for three year terms pursuant to the Long Plain First Nation
Election Act (“Election Act”), an election code adopted by the First
Nation. The last elections were held on April 12, 2012, and resulted in the
election of the appellant David Meeches as Chief, and of the appellants George
Assiniboine, Marvin Daniels and Ruth Roulette as councillors. Mrs. Daniels
Barbara Esau, who is not a party to these appeals, was also elected councillor
at that time.
[3]
Certain
complaints challenging these elections were submitted to the Election Appeal
Committee constituted under the Election Act, including a complaint by the
respondent, Dennis Meeches. After reviewing the matter, the Election Appeal
Committee concluded as follows:
While there were some deviations
from the Long Plain Election Act as discussed above, the election process
overall appears to have been fairly conducted. However, since the Election Act
is a key part of the governance of the First Nation and since it was enacted to
govern elections, we recommend that the election be set aside and an election
process be undertaken following the Act as it is written.
[4]
An
application
was subsequently filed in the Federal Court on behalf of the First Nation
seeking to set aside that decision. Concurrently, a motion was brought seeking
to stay the decision pending the final determination of the application. The
stay motion was dismissed by Harrington J. on May 11, 2012 (citation 2012 FC
570) on the ground that the Election Appeal Committee had simply recommended
that a new election be held, and that this recommendation was not a “decision”
or an “order” that had to be accepted or acted upon by the First Nation.
Harrington J. however noted that if an order was issued by the Election Appeal
Committee calling for a new election, then a new stay motion could be
submitted, if need be. The First Nation discontinued its application shortly
after receiving the decision of Harrington J.
[5]
In
light of that decision, the respondent Dennis Meeches asked the Election Appeal
Committee to clarify its prior decision, which it declined to do. The
respondent Dennis Meeches then initiated his own application before the Federal
Court. That application was dealt with by Russell J. in the judgment which is
the subject of the pending appeals before our Court. Russell J. found that he
was not bound by the prior decision of Harrington J., and he rather concluded, at
par. 87 of his reasons, “that a decision by the Election Appeal Committee under
paragraph 17.7 [of the Election Act] that a new election should be called is
binding upon the Tribal Government, and they must act upon it forthwith and
call an election.”
[6]
The respondent
subsequently filed a motion in the Federal Court seeking an order pursuant to
Rule 431 of the Federal Courts Rules, SOR/98-106 compelling compliance
with the decision of Russell J. That motion was dismissed by Strickland J. on
April 11, 2013 on the ground that the judgment of Russell J. was purely
declaratory and could therefore not be enforced under Rule 431.
[7]
The appellants
are now seeking to stay the effects of the judgment of Russell J. pending the
outcome of their appeals to our Court.
PROCEDURAL
MATTER
[8]
Prior
to
the hearing of these stay motions, the appellant David Meeches sought to add to
his motion record an additional affidavit referring to additional documents. At
the outset of the hearing, after having received representations from the
parties, I refused to accept for filing this additional affidavit for the
following reasons: (a) first, many of the documents referred to in the
affidavit were already part of the record, the respondent Dennis Meeches having
included some in his own motion record; (b) second, the remaining documents
contemplated by the additional affidavit did not concern new matters and were
available to the appellant David Meeches at the time he first filed his motion
record; (c) third, in light of the timelines, the respondent was not provided
with an adequate opportunity to respond to the additional affidavit and the
additional material it referred to.
PRELIMINARY
MATTER: CAN THE DECLARATORY JUDGMENT BE STAYED?
[9]
Since
Strickland
J. found that the declaratory judgment of Russell J. was not enforceable under
Rule 431 of the Federal Courts Rules, the respondent Dennis Meeches
questions whether a stay of that judgment is appropriate. He relies for this
purpose on Janssen-Ortho Inc. v. Apotex Inc., 2009 FCA 250, 392 N.R.
308.
[10]
Janssen-Ortho
Inc. v. Apotex Inc. concerned a motion to stay an order of
a prothonotary who had summarily dismissed a prohibition application under the Patented
Medicines (Notice of Compliance) Regulations, SOR/93-133. Since the
prothonotary’s order simply put an end to an attempt to stop the Minister of
Health from doing something she was required to do under her statutory mandate,
Sharlow J.A. found that no stay was available in those circumstances. With
respect, that decision has no bearing on the issue at hand in these
proceedings.
[11]
In
this case, the judgment of Russell J. “declares that the Election Appeal
Committee made a final and binding decision which requires new elections for
the offices of Chief and Council of the Long Plain First Nation to take place”
and “further declares that all relevant parties are bound by and must comply
with the decision to hold new elections, including the present Tribal
Government.”
[12]
Such a
declaratory judgment is binding and has legal effect. A declaration differs
from other judicial orders in that it declares what the law is without ordering
any specific action or sanction against a party. Ordinarily, such declarations
are not enforceable through traditional means. However, since the issues which
are determined by a declaration set out in a judgment become res judicata
between the parties, compliance with the declaration is nevertheless expected,
and it is required in appropriate circumstances.
[13]
Declaratory
relief is particularly useful when the subject of the relief is a public body
or public official entrusted with public responsibilities, because it can be
assumed that such bodies and officials will, without coercion, comply with the
law as declared by the judiciary. Hence the inability of a declaration to
sustain, without more, an execution process should not be seen as an inadequacy
of declaratory orders against public bodies and public officials.
[14]
As
aptly noted by MacGuigan J.A. in LeBar v. Canada (F.C.A.), [1989] 1 F.C.
603, 90 N.R. 5, the proposition that public bodies and their officials must
obey the law is a fundamental aspect of the principle of the rule of law, which
is enshrined in the Constitution of Canada by the preamble to the Canadian
Charter of Rights and Freedoms. Thus, a public body or public official
subject to a declaratory order is bound by that order and has a duty to comply
with it. If the public body or official has doubts concerning a judicial
declaration, the rule of law requires that body or official to pursue the matter
through the legal system. The rule of law can mean no less.
[15]
As
further noted in Doucet-Boudreau v. Nova Scotia (Minister of Education),
2003 SCC 62, [2003] 3 S.C.R. 3, (“Doucet-Boudreau”)
at par. 62, the assumption underlying the choice of a declaratory order as
a remedy is that governments and public bodies subject to that order will
comply with the declaration promptly and fully. However, should this not be the
case, the
Supreme Court of Canada has laid to rest any doubt about the availability of
contempt proceedings in appropriate cases in the event that public bodies or officials
do not comply with such an order. As noted by Iacobucci and Arbour JJ. at par. 67
of Doucet-Boudreau:
“[o]ur colleagues LeBel and Deschamps JJ. suggest that the reporting order in
this case was not called for since any violation of a simple declaratory remedy
could be dealt with in contempt proceedings against the Crown. We do not
doubt that contempt proceedings may be available in appropriate cases”
(emphasis added).
[16]
Moreover, in
the seminal case of RJR-MacDonald v. Canada (A.G.), [1994] 1 S.C.R. 311,
the Supreme Court of Canada stayed a judgment of the Quebec Court of Appeal
declaring valid certain provisions of legislation controlling the marketing and
sale of tobacco products. After that judgment, regulations were enacted under
the legislation that, if enforced, would have imposed costly obligations on the
parties asserting a constitutional challenge to the legislation. In those
circumstances, the Supreme Court of Canada found that it had jurisdiction to
stay the effect of the judgment of the Quebec Court of Appeal. Justice
Rothstein reiterated this principle in Baier v. Alberta, 2006 SCC 38,
[2006] 2 S.C.R. 311 (“Baier”) at paras. 12 to 14.
[17]
The effect
of the declaratory judgment of Russell J. is quite clear: new elections are to
be called without any further delay. Further, as public officials and parties
to the proceedings, the Chief and councillors of the First Nation are bound by
this judgment and are compelled to implement its effects. Moreover, in this
case, the respondent has indicated that he will be forcefully pursuing legal
proceedings to enforce the judgment of Russell J. in the event the stay motion
is not allowed: see transcript of cross examination of Dennis Meeches held
Friday April 19, 2013 at pp. 45 to 47. Already the respondent has
unsuccessfully sought an order under Rule 431. In these circumstances, it is
both open to and appropriate for this Court to determine if a stay of the
effects of the declaratory judgment of Russell J. should be granted.
ANALYSIS
[18]
The
test
which applies when considering whether to grant a stay order pending an appeal
is the well known test set out in RJR-MacDonald v. Canada (A.G.), above.
I summarized that test as follows in Tervita Corp. v. Canada (Commissioner of Competition, 2012 FCA 223, 434 N.R. 159 at par. 9:
a.
First,
a preliminary assessment must be made of the merits of the appeal to ensure
that there is a serious issue to be determined. The threshold here is a low
one. It suffices that the appeal is not frivolous or vexatious. A prolonged
examination of the merits of the appeal is neither necessary nor
desirable, save in exceptional circumstances, such as where the stay would, in
effect, amount to the final determination of the appeal, or would impose such
hardship on a party as to remove any benefit from proceeding with the appeal.
b.
Second,
it must be determined whether the party seeking the stay will suffer
irreparable harm if it were refused. The only issue to be decided at this stage
is whether the refusal to grant the stay could so adversely affect the
appellants’ interests that the harm could not be remedied in the event the
appeal is successful. Irreparable harm refers to the nature of the harm
suffered rather than its magnitude. It is harm which cannot be quantified in
monetary terms or which cannot be cured, usually because one party cannot
collect damages from the other.
c.
Third,
an assessment must be made as to which of the parties would suffer greater harm
from the granting or refusal of the stay pending the decision on the merits of
the appeal. The factors which may be considered in the assessment of this
“balance of convenience” test are numerous and vary which each case. Public
interest considerations may be considered within this balancing exercise.
Serious
Issue
[19]
Though
the appellants raise numerous issues in their respective notices of appeal, for
the purposes of this stay motion, I need only be satisfied that a least one of
these issues meets the low threshold of the first part of the test.
[20]
In this
case, Harrington J. found that the Election Appeal Committee had made a
non-binding recommendation to hold a new election, while Russell J. found that
the committee had made a binding decision which required all interested parties
to proceed forthwith with a new election. These apparently contradictory
findings raise numerous issues which merit appellate review, not the least of
which is the binding or non-binding effect of the Election Appeal Committee’s
decision. This is a serious issue.
[21]
However, I
express no opinion whatsoever on that issue or on any other issue raised by the
appeals. I only find that the appellants have raised in their appeals at least
one issue that meets the serious issue test for the purposes of their stay
motions.
Irreparable
Harm
[22]
Should the
stay not be granted, as a result of the judgment of Russell J. and of the rule
of law, the appellants will be required to follow the recommendation of the
Election Appeal Committee to call a new election for the positions of Chief and
councillors of the First Nation. The outcome of such an election cannot be
predicted. Consequently, should the stay be denied, the appellants will risk
losing their political offices prior to the normal expiration of the term for
which they were elected. In the event they are not re-elected, they would no
longer benefit from the pecuniary advantages attached to their offices, as well
as from the prestige and authority which such offices confer.
[23]
The loss
of elected office prior to the expiration of the normal term of office has
generally been found to constitute irreparable harm in light of the
non-compensable nature of the loss suffered: Baier, above, at para. 16;
Gabriel v. Mohawk Council of Kanesatake, 2002 FCT 483 (“Gabriel”)
at paras. 26 to 30; Martselos v. Salt River First Nation #195, 2007
FC 613 at para. 15; Prince v. Sucker Creek First Nation, 2008 FC 479 at
paras. 30 to 32; Lower Nicola Indian Band v. Joe, 2011 FC 147 at paras.
18 to 20; York v. The Council, 2012 FC 103 at para. 35.
[24]
Though in some cases irreparable harm has been found not to attach to the
loss of elected office, these cases may be easily distinguished. Thus, in Weekusk
Sr. v. Thunderchild First Nation (Appeal Tribunal), 2007 FC 202, 309 F.T.R.
314, Tremblay-Lamer J. distinguished (at paras. 12 to 20) her findings on irreparable
harm set out in Gabriel, above, on the basis that the elected band
councillors had only recently been elected; however, a close reading of this
decision shows that it was in fact decided on the basis of the balance of
convenience rather than irreparable harm. Likewise, in Stoney First Nation v.
Shotclose, 2011 FCA 232, 422 N.R. 191, Stratas J.A. found (at para. 40)
that no irreparable harm resulted from the removal of band councillors from
office; however, in that case, the terms of office of the councillors had
already expired, and the concerned councillors were attempting to unilaterally
extend their terms without calling an election.
[25]
In this
case, the appellants have held their elected positions for the last year as a
result of the decision of Harrington J. finding that the Election Appeal
Committee had simply made a non-binding recommendation. Moreover, the
appellants’ terms of office have not yet expired. In these circumstances, I
find that the appellants will suffer irreparable harm should a new election be
called as a result of the judgment of Russell J.
Balance
of convenience
[26]
The
appellants
have the right to appeal to this Court, and that right would largely become
moot should an election be held as a result of denying a stay of the judgment
of Russell J.
[27]
Nevertheless, the
respondent suggests that this Court should deny the stay and rather proceed
with scheduling the appeals in such a manner that they may be finally disposed
of after the election is called, but prior to the actual voting day. This is
not a practical option. Once an election is called, it is simply unrealistic to
believe that it could be cancelled without causing disruption and confusion
among the electors of the First Nation. Moreover, should an election be held,
this will involve costs for the First Nation and for each candidate running in
the election.
[28]
The respondent
further submits that should the stay be granted, these appeals may well not be
finally dealt with before the end of 2013 or the beginning of 2014. Should the
decision of Russell J. be then upheld by our Court, and taking into account the
minimum time required to organize and hold an election, by the day that
election is held the appellants will have illegitimately occupied their elected
offices for most of their three year term. This is certainly a valid
preoccupation which I must take into account in assessing the balance of
convenience and determining an appropriate solution.
[29]
In this
case, another important factor in the balance of convenience analysis is the
public interest of the First Nation. Though here the appeals do not concern
constitutional issues as was the case in RJR-MacDonald v. Canada (A.G.),
above, they nevertheless raise public interest considerations that must be
taken into account in the balance of convenience component of the test to grant
a stay: Gopher v. Saultaux First Nation, 2005 FC 481 at para. 28.
[30]
Until recently,
the appellants and the electors of the First Nation could reasonably conclude
from the decision of Harrington J. that the elected Chief and council were
legitimately occupying their offices. However, the decision of Russell J. now
places into question that legitimacy. As a result, there is now uncertainty in
the management of the affairs of the First Nation. That uncertainty is not in
the best interest of the First Nation, and it will continue until the matter is
finally resolved, either through a decision of this Court or through a new
election.
[31]
In my
view, calling an election now would result in even more uncertainty and confusion
in the affairs of the First Nation, particularly in the event this Court
eventually overturns the decision of Russell J., either during the time that
election is taking place or after the results of the election have been made
public. On the other hand, for the reasons set out above, the current situation
should not be unduly prolonged.
CONCLUSIONS
[32]
Consequently,
I
will stay the judgment of Russell J., but without costs on the stay motions. I
will also significantly abridge the delays set out under the Federal Courts
Rules for the purpose of expediting these appeals, as all parties requested
me to do at the hearing of these stay motions. Moreover, pursuant to paragraph
53(1) and section 55 of the Federal Courts Rules, I will further order a
modified appeal process to ensure that the abridged calendar for these
consolidated appeals is respected. I will also set the date and place of the
hearing of both consolidated appeals for Tuesday June 25, 2013 at 9:30 am in Winnipeg for a maximum duration of 3 hours. The stay order will remain subject to paragraph
398(3) of the Federal Courts Rules.
"Robert M.
Mainville"
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