Date: 20121030
Docket: A-450-11
Citation: 2012 FCA 269
CORAM: PELLETIER J.A.
GAUTHIER J.A.
STRATAS
J.A.
BETWEEN:
FORT MCKAY
FIRST NATION CHIEF AND COUNCIL
Appellants
and
MIKE
ORR
Respondent
REASONS FOR JUDGMENT
STRATAS
J.A.
[1]
The
Council of the Fort McKay First Nation decided to suspend the respondent, Mr.
Orr, without pay from his office as a councillor and to remove him from
directorships in certain corporations. The Council did so upon hearing of a
sexual assault charge against Mr. Orr. Those charges remain pending. In
addition to that, the Council had received complaints that Mr. Orr had sent
explicit text messages and photographs to the alleged victim of the sexual
assault and to another woman. The Council expressed its decision in a
resolution dated July 13, 2011.
[2]
Mr.
Orr brought an application for judicial review of the Council’s decision to
suspend him from Council. He argued that, in these circumstances, the Council lacked
jurisdiction under the Fort McKay First Nation’s Election Code. He also
argued that the Council acted in a procedurally unfair manner.
[3]
The
Federal Court (per Justice Near) allowed the judicial review, set aside
the resolution and restored Mr. Orr to his office of councillor pending the
outcome of his criminal trial: 2011 FC 1305. The Federal Court held that the
Council’s resolution failed to include particulars of Mr. Orr’s conduct that it
relied upon in making its decision, as required by the Election Code. It
added that the decision to suspend Mr. Orr as a councillor was not supported by
any ground set out in the Election Code. Finally, although not deciding
the matter, it expressed concern that the Council had not acted in a
procedurally fair manner.
[4]
The
Chief and Council appeal to this Court. For the reasons that follow – reasons
that differ somewhat from those of the Federal Court – I would dismiss the
appeal with costs.
A. The
Facts
[5]
Mr.
Orr was re-elected on April 5, 2011 as a councillor for the Fort McKay First
Nation. In the next three months, the events described at the outset of these
reasons took place. These culminated in the resolution passed by the Council on
July 13, 2011. At the time the Council passed the resolution, the charge of
sexual assault against Mr. Orr remained pending.
[6]
The
Council’s resolution reads as follows:
WHEREAS: A quorum of the Fort McKay First Nation
Council met on the 13 day of July 2011;
AND WHEREAS: Pursuant to their inherent right to
self-government, and pursuant to the powers granted to Chief and Council under
the Indian Act, the Chief and Council are empowered to make decisions on
behalf of the membership of the Fort McKay First Nation;
AND WHEREAS: The Chief and Councillors hold the
shares of all corporate entities within the First McKay Group of Companies in
trust for the Fort McKay First Nation and are responsible for the appointment
and removal of Directors;
AND WHEREAS: Councillor Mike Orr has been charged
with serious criminal offences and is being sought for arrest by the Royal
Canadian Mounted Police;
THEREFORE BE IT RESOLVED THAT:
1. Effective immediately, Mike Orr is suspended as a
Councillor without pay, and this suspension will remain in place until all
charges against him are resolved; and
2. Effective immediately, Mike Orr is removed as a
Director of all corporate entities within the Fort McKay Group of Companies and
joint ventures.
[7]
Properly
characterized, the Council’s resolution is a decision that Mr. Orr should be
suspended without pay as a councillor.
B. Analysis
(1) The
standard of review
[8]
The
Federal Court judge held that the standard of review of correctness applied to
the Council’s decision regarding its “jurisdiction” to suspend Mr. Orr from his
office as councillor. The parties agree with the Federal Court judge in this
respect.
[9]
We
are to adopt the standard of review worked out in an earlier case if it is
“satisfactory”: Dunsmuir v. New Brunswick,
2008 SCC 9 at paragraph 62, [2008] 1 S.C.R. 190. There
is authority from this Court to suggest that correctness is the standard of
review for decisions made under a section that is “jurisdictional” in nature: Martselos
v. Salt River Nation #195, 2008 FCA 221 at paragraphs 28-32.
[10]
However,
later holdings of this Court and the Supreme Court of Canada have arguably
undercut the
basis for correctness review outlined in Martselos. The Supreme Court
has recently suggested that the characterization of a legislative provision as
“jurisdictional” for the purposes of judicial review should be avoided: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission),
2012 SCC 10 at paragraph 34. It has also recently queried whether any “true
questions of jurisdiction” warranting correctness review exist: Alberta (Information
and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61.
Our Court has held that so-called “jurisdictional” issues are usually issues of
interpreting legislative wording, a matter on which reasonableness is the
standard: Public Service Alliance of Canada v. Canadian Federal Pilots Assn.,
2009 FCA 223. Indeed, on issues of interpreting legislative wording, there is a
“presumption” that the standard of review is “reasonableness”: Alberta
Teachers' Association, at paragraph 34.
[11]
As
noted above, the parties do not take issue with the standard of review adopted
by the Federal Court. I am not bound by the parties’ willingness to adopt a
standard of review of correctness: Monsanto Canada Inc. v. Ontario
(Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152. In
light of the foregoing analysis, in my view the applicable standard of review
is reasonableness.
[12]
In
the circumstances, however, the distinction between the two standards of review
is most narrow. If the Council’s decision to suspend Mr. Orr as a councillor by
way of resolution alone cannot be supported by the words of the Election
Code or any other source of power, the decision cannot be said to be
acceptable or defensible on the law. I now turn to this issue.
(2) The
power of the Council to suspend Mr. Orr by way of resolution alone
(a) Did
the Council have an “inherent power” to suspend Mr. Orr by way of resolution
alone?
[13]
The
Chief and Council argue that the Council had the power to suspend Mr. Orr from
office by way of resolution alone under an “inherent power”.
[14]
In
the view of the Chief and Councillor, the “inherent power” was properly
exercised here. Council had to take steps to protect itself against vicarious
liability for sexual harassment and to take steps as a proper fiduciary to
protect band members. On that, it is not immediately clear to me how the
suspension of Mr. Orr as a councillor would achieve those ends.
[15]
The
Federal Court held that Council’s power to make this resolution exists only
under the Fort McKay First Nation’s Election Code. The Federal Court
found that the resolution was not supported by an inherent power. The Federal
Court stated as follows (at paragraphs 19 and 20):
Based on previous determinations by this Court, the
[Chief and Council] has asserted that the Council may retain the inherent power
to suspend as rooted in custom to ensure harmony in the community so long as
the Band’s legislation has not “covered the field” (See Whitehead v. Pelican
Lake First Nation, 2009 FC 1270, 2009 CarswellNat 4625 at para. 41; Lafond
v. Muskeg Lake Cree Nation, 2008 FC 726, 2008 CarswellNat 1882 at para. 10)
While this may have been relevant in other
instances, I fail to see its application to the present case. Given the
relatively broad and specified causes for suspension in the Election Code
related to conduct in office, I must find that the legislation has “covered the
field” in this area and does not give rise to additional inherent or customary
powers to suspend.
[16]
I
agree with the Federal Court that the provisions of the Election Code on
the removal or suspension of councillors oust any inherent power that may exist
on those subjects and “covers the field.”
[17]
Even
if a custom or inherent power exists, it may be ousted by express legislative
language: Lafond v. Muskeg Lake Cree Nation, 2008 FC 726, 330 F.T.R. 60.
Here, in my view, even assuming a custom or inherent power exists, for the
reasons explained above, the Election Code ousts it.
[18]
The
Election Code sets out very detailed, carefully constructed, and
precisely worded provisions regulating when and how councillors may be removed
or suspended. It would be surprising if such demanding regulation could be so
easily circumvented by relying upon an undefined, general, inherent power, as
the Chief and Council suggest.
[19]
The
democratic backdrop of the provisions of the Election Code also
undermines the suggestion that Council could simply act on its own based on an
inherent power. As we shall see, relevant provisions of the Election Code
require a democratic vote of the electors of the First Nation before a
suspension or removal will be effective. These provisions must be interpreted
in light of the fact that a councillor holds office on the basis of a majority
vote of the electors of the First Nation. A paragraph in the preamble to the Election
Code stresses that “the culture, values and flourishing of the Fort McKay
First Nation [are] best advanced by…the selection and removal of leadership on
the basis of democratic principles.” The relevant provisions of the Election
Code and that paragraph in the preamble have been democratically adopted:
they came into force only after a majority of the electors of the First Nation
ratified the Election Code.
[20]
At
a more basic level, the Chief and Council have not demonstrated the existence
of any custom or inherent power that bears upon the issue of suspending
councillors. The onus lies on the Chief and Council to establish this: Whitehead
v. Pelican Lake First Nation, 2009 FC 1270 at paragraph 40, 360 F.T.R. 274;
Francis
v. Mohawk Council of Kanesatake, 2003 FCT 115 at paragraph 21, 227
F.T.R. 161.
[21]
Therefore,
I conclude that the Council’s power to suspend Mr Orr by way of resolution
alone is not supported by an inherent power. The issue before us, then, is
whether the Council’s decision to suspend Mr. Orr from his office of councillor
by way of resolution alone can be supported on a reasonable reading of the
relevant provisions of the Election Code.
(b) The
relevant provisions of the Election Code
[22]
In
the alternative to their submission that the resolution was supported by an
inherent power, the Council and Chief submit that the resolution was supported
by the powers granted to the Council under the Election Code.
[23]
The
parties agree that the provisions in the Election Code dealing with the
suspension and removal of councillors are sections 100 to 103. These sections
read as follows:
Part
10
Suspension,
Removal and Vacancy of Office
100 Vacancy of
Office
100.1 The office of a
chief or councillor automatically becomes vacant when:
100.1.1 the chief
or councillor dies; or
100.1.2 the chief
or councillor is convicted of a criminal office.
101 Removal or suspension of
a chief or councillor
101.1 A chief or
councillor may be removed or suspended from office by a vote of the electors
according to the process set out in this Code.
101.2 The process for removal of a chief or
council [sic] may be commenced by:
101.2.1 resolution
of the council; or
101.2.2 petition
of the electors
101.3 The resolution
of the council or the petition, as the case may be, must include the
particulars of cause for the removal or suspension of the chief or councillor,
including cause on the basis that the chief or councillor has:
101.3.1 missed
three consecutive council meetings without notice or reasons;
101.3.2 ceased to
meet the eligibility requirements for nomination;
101.3.3 engages
in drunk, drug related, disorderly or inappropriate conduct at council
meetings, general meetings, special meetings or other public functions in which
the chief or councillor are present as representatives of the first nation and
which would tend to bring the reputation of the first nation into disrepute;
101.3.4 uses or
misappropriates first nation funds or converts first nation property to his own
use, including the funds or property of related business corporation or
entities which are owned or controlled, in whole or in part, by the first
nation;
101.3.5 engaged
in gross financial mismanagement such that the first nation is burdened with
substantial unnecessary debt;
101.3.6 breached
Part 8 of this Code and the breach has resulted in adverse effect to the first
nation; or
101.3.7 such
further or other conduct which is sufficiently serious to warrant cause in all
the circumstances.
102 Petitions
102.1 A
petition for the removal of a chief or councillor shall include:
102.1.1 the name
of the chief or councillor sought to be removed or suspended; and
102.1.2 the
grounds on which the petition is signed, with reference to the relevant
sections of this Code.
102.2 A petition for
the suspension or removal of any chief or councillor is valid if:
102.2.1 the
petition has been signed by no loss than twenty five (25%) percent of the
electors;
102.2.2 the
petition consists of one or more pages, each of which contains an identical
statement of the purpose of the petition;
102.2.3 the
petition includes, for each petitioner:
102.2.3.1 the
printed surname and printed given names or initials of the petitioner;
102.2.3.2 the
petitioner’s signature;
102.2.3.3 the
mailing address, street address, or land description at which the petitioner
resides;
102.2.3.4 the date
on which the petitioner signs the petition;
102.2.3.5 each
signature on the petition must be witnesses by an adult person who has signed
opposite the signature of the petitioner; and
102.2.3.6 if the
petition has attached to it a signed statement of a person stating that they
are the representative of the petitioners and that inquiries about the petition
may be directed to them.
103 Vote of the electors
103.1 Upon receipt
of a petition meeting the requirements of section 101 or upon the resolution of
the council, the chief shall call a special meeting for the purpose of
conducting a vote for the removal or suspension of a councillor. In the case of
a vote which affects the chief, the council shall, by resolution, call the
special meeting.
103.2 Upon the
declaration of a voting result, the affected member of council shall be deemed
to have been removed from office and ceases to be entitled to all rights and
privileges associated with that office.
103.3 No voting
result shall be valid unless the vote has been conducted by secret ballot at a
special meeting at which a majority of electors have attended.
(c) Interpreting the
relevant provisions of the Election Code
[24]
Mr.
Orr made two submissions on the issue of the power of the Council to suspend
him as a councillor by way of resolution alone. First, he submits that sections
100-103 do not allow the Council to suspend him from office by way of
resolution alone. Second, there was no cause for his suspension under section
101.3 of the Election Code.
[25]
The
Federal Court judge found that there was no cause for his suspension under
section 101.3. He did not deal with the first submission.
[26]
In
particular, the Federal Court judge found that Mr. Orr’s conduct was not “sufficiently
serious to warrant cause in all the circumstances” within the meaning of
section 101.3.7. The Federal Court judge did not view section 101.3.7 as regulating
the private conduct of councillors. The Federal Court drew a distinction (at
paragraph 31) between “events in [a councillor’s] personal life” and “[the councillor’s]
position in public office.”
[27]
The
Election Code does not expressly support the distinction drawn by the
Federal Court judge. Further, other provisions of the Election Code
suggest that such a distinction does not exist.
[28]
The
Election Code identifies as intrinsic to the role of councillor the
concepts of honour, integrity and service as a role model. In particular,
certain sections in the Election Code draw a clear connection between a
councillor’s conduct and public confidence in government. Section 91.1.6 states
that the Council must act according to its “responsibility as a role model and
representative of the first nation.” Section 97.1.1 states that the Council
must “represent the interests of the first nation with honour and integrity.”
[29]
These
sections support the view that the potential breadth of the wording in section
101.3.7 of the Election Code – “sufficiently serious to warrant cause in
all the circumstances” – could be given full effect by the Council. It follows
that the Federal Court judge wrongly narrowed the meaning of the words, and
that it was open to the Council to take the view that, if established by the
evidence, Mr. Orr’s conduct could fall within section 101.3.7.
[30]
This
does not end the matter. There is Mr. Orr’s first submission to consider,
namely that the Council did not have the power to suspend him from office by
passing a resolution alone.
[31]
In
my view, this submission must be accepted. Various portions of sections 100-103
of the Election Code do not allow the Council to suspend Mr. Orr from
office by passing a resolution alone. Several provisions of the Election
Code support this:
● Under
section 101.1, a “councillor may be removed or suspended from office by a vote
of the electors according to the process set out in this Code.” There has been
no vote of electors.
● Section
103.1 describes the requirement of a vote of electors. It provides that upon
resolution of the Council calling for a councillor’s suspension, the Chief must
call a special meeting of electors “for the purpose of conducting a vote for
the suspension of a councillor.”
● Sections
101.2 and 101.2.1 provide that the “process for removal” of a councillor is
only “commenced” by a resolution. That process is completed by the vote of
electors in section 103.1.
● The
requirement of a vote of electors is underscored by a preamble in the Election
Code, namely that “the culture, values and flourishing of the Fort McKay
First Nation [are] best advanced by…the selection and removal of leadership on
the basis of democratic principles.”
● Under
section 100.1 of the Election Code, a councillor automatically loses his
or her office in two circumstances: upon death or upon conviction of a criminal
offence, not upon a criminal charge.
[32]
Therefore,
I conclude that Council did not have the power to suspend Mr. Orr as a
councillor by way of resolution alone. It follows that in doing so it reached
an outcome that was outside the range of the acceptable and defensible. Its
decision to suspend Mr. Orr as a councillor by way of resolution alone is
unreasonable. The decision must be quashed.
[33]
Given
my conclusion on this point, it is not necessary to consider whether the Chief
and Council accorded Mr. Orr sufficient procedural fairness in deciding to
suspend him as a councillor.
D.
Proposed Disposition
[34]
I
would dismiss the appeal with costs.
"David
Stratas"
“I
agree
J.D. Denis Pelletier J.A.”
“I
agree
Johanne Gauthier J.A.”
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