Date: 20120118
Docket: A-450-11
Citation: 2012 FCA 17
Present: STRATAS
J.A.
BETWEEN:
FORT MCKAY FIRST NATION CHIEF AND
COUNCIL
Appellants
and
MIKE ORR
Respondent
REASONS FOR ORDER
STRATAS J.A.
[1]
The
appellants, the Fort McKay Chief and Council, seek an order staying the
judgment dated December 5, 2011 of the Federal Court (per Justice Near) in
file T-1180-11 until this Court hears and determines their appeal. The Federal
Court’s reasons for judgment can be found at 2011 FC 1305.
[2]
In order to stay the Federal Court’s judgment, the Chief and
Council must demonstrate that there is a serious issue to be tried, irreparable
harm will be suffered if the judgment is not stayed, and the balance of
convenience lies in favour of granting the stay: RJR-MacDonald Inc. v.
Canada (Attorney General), [1994] 1 S.C.R. 311.
[3]
Since these requirements are met, the stay shall be granted.
A. The
facts
[4]
The respondent, Mr. Orr, is a councillor for the Fort McKay First
Nation. On July 1, 2011, he was charged with the sexual assault of a woman
contrary to section 271 of the Criminal Code, R.S.C. 1985, c. C-46. His
criminal trial has not taken place. In the meantime, he is required to abstain
from communicating with this woman or going near her residence.
[5]
Twelve days after charges were laid, the Council passed a
resolution suspending Mr. Orr from his position as councillor and removing him
as a director of all corporate entities associated with the First Nation.
[6]
Mr. Orr brought an application for judicial review of the
Council’s decision to suspend him.
[7]
The Federal Court granted the application for judicial review. In
its view, the Council lacked jurisdiction to suspend Mr. Orr under Part 10 of
Fort McKay First Nation’s Election Code. It also found that the Council
did not follow the procedures set out in Part 10 of the Election Code.
B. Applying
the test for a stay
(1) Serious
issue
[8]
On
the first branch of the three-fold test for a stay, the appellant must
establish that the appeal involves a serious issue. However, the threshold for
seriousness is “a low one” and “liberal”: RJR-MacDonald, supra at
page 337; 143471 Canada Inc. v. Quebec (Attorney
General),
[1994] 2 S.C.R. 339 at page 358, La Forest J. (dissenting, with apparent
concurrence on this point from the majority). It need only be shown that the appeal
is not doomed to fail or that it is “neither vexatious nor frivolous”: RJR-MacDonald,
supra at page 337.
[9]
From
the material filed, it appears that this appeal will turn on the proper
interpretation of Part 10 of the Election Code and its application to
the facts of this case. Without in any way prejudging this appeal, it seems to
me that the Chief and Council do have arguments to make in this Court: their arguments
are not doomed to fail and are not frivolous or vexatious.
(2) Irreparable
harm
[10]
The
Chief and Council have established irreparable harm. Their affidavit evidence
is somewhat unparticularized, but it is enough to establish the existence of harm
that would materialize if the stay is not granted. This includes harm to the
reputation and standing of the Council, community concerns, and concerns
associated with Mr. Orr continuing in office and serving as a director of the
First Nation’s corporate entities while the charges are hanging over him.
(3) Balance of
convenience
[11]
As
the moving parties, the Chief and Council bear the burden of showing that the
balance of convenience lies in favour of the granting of the stay. The
affidavits tendered on their behalf disclose various harms and inconveniences,
as described above. This evidence lacks some particularity on the issues of
harm and inconvenience. This diminishes the weight that can be given to it.
Does it outweigh the evidence tendered on behalf of Mr. Orr?
[12]
The
evidence tendered on behalf of Mr. Orr consists of identically-worded affidavits
from thirteen members of the Fort McKay First Nation. This evidence suffers
from some deficiencies.
[13]
The
affidavits contain only general, unparticularized assertions without supporting
reasoning or information. They go no further than to show that thirteen people feel
that Mr. Orr should continue in office. Whether their feelings mirror those of
the community is unclear. Further, the affidavits do not show any tangible harm
or inconvenience that has happened or might happen in the future.
[14]
However,
I do accept there is harm associated with the removal of a duly-elected councillor:
the will of the electorate is thwarted. This harm has been suffered during the
last six months.
[15]
As
I explain below, this appeal will be heard in approximately three months’ time.
Therefore, if a stay is granted, for at least another three months this
community will be deprived of one of its chosen representatives. What weight
should be given to this consideration?
[16]
Unfortunately,
the affidavits tendered on behalf of Mr. Orr do not assist. A number of
questions are left unanswered. What roles and responsibilities does Mr. Orr
have as a councillor and as a director? Was he overseeing any particular issues
or projects such that his removal might affect the community’s interests or the
over the next three months? If so, what community interests are affected and to
what extent? Will his removal cause him any personal difficulties over the next
three months? Will his removal deprive the community of a meaningful voice on
certain issues over the next three months? Are there any issues over the next
three months that would benefit from Mr. Orr’s presence?
[17]
Indeed,
the affidavits tendered on behalf of Mr. Orr tend to minimize the existence of
any problems associated with his removal. In particular, they say that
“everything has been peaceful” while he has been out of office and out of his
directorships. As for the future, the affidavits say nothing.
[18]
Based
on the totality of the evidence tendered on behalf of Mr. Orr, it would appear
that Mr. Orr’s absence from his elected office or his directorships does not
cause any particular problem over and above the fact that the community will be
deprived of one elected councillor. In saying this, I do not discount the
importance of that deprivation – it deserves weight.
[19]
Left
unaddressed by the parties is whether Mr. Orr will have any satisfactory
recourse if it turns out that he should not have been removed from his elected
office or directorships. As the parties have not addressed this, it forms no
part of my assessment.
[20]
Overall,
assessing the evidence tendered on behalf of the parties on this motion and
mindful that the burden of proof lies on the Chief and the Council, I find that
that burden has been discharged. The balance of convenience lies in favour of
the Chief and Council.
[21]
Therefore,
I shall order that the judgment dated December 5, 2011 of the Federal Court is
stayed until this Court determines the appeal. The Chief and Council do not
seek their costs of the motion and so I shall not order costs.
C. Miscellaneous
matters concerning the appeal
[22]
The
parties are well-advanced in their preparations for the appeal: they need only
file their memoranda and the requisition for hearing. The parties are
represented by counsel in Edmonton, Alberta. Under the
usual timelines under the Federal Courts Rules, SOR/98-106, as amended, the
parties will have no trouble obtaining a hearing during the next sittings of
the Court in Edmonton. These sittings
will take place as early as the week of April 16 or as late as the week of
April 30.
[23]
In
the circumstances of this case, it is in the interests of this community that the
issues in this appeal be heard as soon as reasonably possible, i.e., during
the next sittings of the Court in Edmonton. I shall so order.
[24]
The
parties need not file a requisition for hearing. Soon the Judicial
Administrator will contact counsel and find out their preferences for the date
of hearing during this Court’s next sittings in Edmonton.
[25]
For
clarity and by way of comfort to the parties, the order of this Court granting
the stay and these reasons have nothing whatsoever to do with the issues on
appeal and no significance should be drawn from them. The appeal is entirely
separate. It will be determined on the basis of the evidentiary record in the
appeal book and the governing law.
"David
Stratas"
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