Date: 20110728
Docket: A-248-11
Citation: 2011 FCA 232
Present: STRATAS
J.A.
BETWEEN:
STONEY FIRST NATION, as represented by
its Chiefs and Councillors
and BEARSPAW FIRST NATION, as
represented by its Chief
and Councillors, Chief David Bearspaw
Jr., Trevor Wesley,
Patrick Twoyoungmen, Roderick Lefthand
and Gordon Wildman
Appellants
and
ROBERT SHOTCLOSE, HARVEY BAPTISTE,
CORRINE WESLEY, MYRNA POWDERFACE,
CINDY DANIELS, WANDA RIDER
and WESLEY
FIRST NATION
Respondents
REASONS FOR ORDER
STRATAS J.A.
[1]
In
two motions, the appellants seek a stay of the judgment dated June 22, 2011 of
the Federal Court (per Justice Mosley): 2011 FC 750.
[2]
In
the Federal Court, the individual respondents (other than the Wesley First
Nation) sought the quashing of certain decisions and actions of the Bearspaw First
Nation, as represented by its Chief and Councillors, and the Stoney First
Nation, as represented by its Chiefs and Councillors.
[3]
In
those decisions and actions, the Chiefs and Councillors extended the terms of
office of the Bearspaw Chief and Council. An election for those offices,
originally scheduled for December 10, 2010, was not held.
[4]
The
Federal Court found in favour of the individual respondents. Among other
things, it:
● declared
that the decisions and actions of the Chief and Councillors to extend their
terms were contrary to Bearspaw Band custom and, therefore, invalid;
● declared
that the terms of office of the Chief and Councillors of the Bearspaw First
Nation ended on December 9, 2010;
● removed
the Chief and Councillors of the Bearspaw First Nation from their offices and
prohibited them from exercising any of their powers pending the next election;
and
● ordered
that a new election for the offices of Chief and Councillors be held within 60
days.
B. Post-judgment events in the
Bearspaw First Nation
[5]
The
Federal Court’s judgment left the Bearspaw First Nation without governance. An
election is scheduled for August 9, 2011. All offices are contested. In all,
twenty-five candidates are running for office, including the former Chief and
some of the former Councillors. After the election, the Bearspaw First Nation
will again have governance.
C. The appellants
bring this appeal
[6]
The
appellants appeal to this Court from the judgment of the Federal Court.
[7]
Broadly
speaking, in their appeal, the appellants say that the Federal Court erred. They
submit that the decisions and actions that extended the terms of office of the
Chief and Councillors were valid, and so they were entitled to remain in
office. As a result, it was wrong for the Federal Court to remove the Chief and
Councillors and to bar them from exercising their powers of governance.
D. The
appellants’ motion for a stay
[8]
Soon
after they filed their notice of appeal, the appellants brought a motion,
without notice to the other parties, for a suspension or stay of the Federal
Court’s judgment until the determination of their appeal. Granting the stay would
postpone the election that is scheduled for August 9, 2011, restore the Chief
and Councillors to office and allow them to exercise their powers of governance
until the appeal is determined.
[9]
On
June 30, 2011, this Court, per Justice Trudel, directed that the appellants’
stay motion be brought on notice.
[10]
Of
course, this direction was warranted. Given the potential impact of the stay motion
and the absence of any need for the appellants to proceed by stealth, the appellants
should have given notice of their motion to all affected parties.
[11]
Following
the direction of Justice Trudel, the appellants gave notice of their stay motion
to the individual respondents. Unsurprisingly, the motion has been vigorously
contested.
E. Miscellaneous
matters
[12]
In
some of the filings, there has been some suggestion that counsel of record for
the appellants no longer has authority to represent the appellant Stoney First
Nation. Based on the filings made by counsel of record for the appellants, the
absence of any filings or motions to relieve this counsel of his
responsibilities and the legal effect of rules 120-126 of the Federal Court
Rules, this Court is entitled to regard this counsel as having authority to
represent the appellant Stoney First Nation.
F. The
scheduling teleconference
[13]
This
Court, acting at the behest of the appellants, held a scheduling teleconference
involving all parties. As a result of submissions made at the teleconference,
this Court expedited the appeal and set tight deadlines for the procedural
steps in the stay motion and the appeal. This Court also added the Wesley First
Nation as a party respondent to the appeal. It participated in the application
before the Federal Court, was regarded by all as having a genuine interest in
the application, and was present for the scheduling teleconference in this
Court.
[14]
The
appeal is scheduled to be heard in mid-September.
[15]
Based
on the materials that the appellants had filed with the Court by the time of
the scheduling teleconference, the Court was concerned about the lack of
governance, the welfare of the community, and the possibility that emergencies
might arise before the stay motion could be determined. The appellants had
already signalled the likelihood that an interim motion seeking immediate
relief might have to be brought. Therefore, in the event that an interim stay
motion became necessary, this Court directed a particular procedure for the
parties to follow. The procedure was designed to deal with a real emergency,
defined by this Court as a serious matter that could not wait until it
determined the stay motion.
G. The
appellants’ motion for an emergency interim stay
[16]
Soon
afterward, following the procedure devised by the Court, the appellants brought
a motion for an emergency interim stay. They filed material in support of it.
This Court found that the appellants’ material did not disclose an emergency
requiring this Court’s intervention before it determined the stay motion. It
ruled that it would consider the interim stay motion together with the stay
motion.
H. The motions before
this Court
[17]
Therefore,
before this Court are two motions for a stay of the Federal Court’s judgment and
all of the supporting material offered by the parties in both motions.
[18]
In
the interests of speed, the parties were content that the Court determine these
motions on the basis of written representations under rule 369 rather than by
way of oral submissions. This Court did not require any oral submissions from
the parties. It determined the two motions on the basis of the ample material
filed by the parties and the parties’ helpful written representations. These
are the Court’s reasons concerning both motions.
I. Preliminary
issues in the motions
(1) Admissibility
of the affidavit of Robert Shotclose, sworn July 19, 2011
[19]
The
individual respondents presented this affidavit to the Registry after the time
set by this Court in its scheduling order for the filing of affidavits and
cross-examinations. The Registry accepted this affidavit for filing. Quite
aside from the scheduling order, the filing of such an affidavit is not
contemplated by rule 369.
[20]
If,
on a motion made to this Court, the individual respondents demonstrated due
cause and the absence of prejudice to the appellants, this affidavit might have
been admissible. However, the individual respondents did not bring such a motion.
[21]
Accordingly,
this affidavit should not have been accepted for filing and it is inadmissible.
In reaching its decision on these motions, this Court has not taken it into
account. The Registry shall remove this affidavit from the Court file and
return it to counsel for the individual respondents.
(2) The motion for an
order imposing confidentiality over Exhibit “B” to the affidavit of Robert
Shotclose, sworn July 19, 2011
[22]
The
appellants brought a motion for a confidentiality order over Exhibit “B” to this
affidavit. The respondents consented to the motion.
[23]
As
mentioned above, this affidavit should not have been accepted for filing. It
will be removed from the Court file and will be returned to the individual
respondents. Therefore, a confidentiality order is not necessary and none shall
be made.
[24]
A
comment on this motion is necessary for the guidance of parties in future
cases. In their material in support of their motion, the appellants offered
virtually no justification for the imposition of confidentiality over Exhibit
“B”. They referred to a public interest in confidentiality over the financial
information, but did not specify exactly what that public interest was, nor did
they attempt to justify with particularity why confidentiality was warranted.
[25]
The public interest is
overwhelmingly in favour of open court proceedings. Indeed, it is
a constitutional principle under subsection 2(b) of the Charter that court
proceedings, including the material filed with the Court, are to be open, not
secret. Those seeking secrecy over some aspect of proceedings such as this must
establish that an exception to this constitutional principle is warranted,
following the exacting procedures and standards repeatedly set out by the
Supreme Court of Canada: see, e.g., Dagenais v.
Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v.
Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Canadian
Broadcasting Corp. v. The Queen, 2011 SCC 3,
[2011] 1 S.C.R. 65.
[26]
Seen in light of these
cases and our Constitution, the word “confidentiality” is a euphemism of sorts.
What is being really sought in this motion – by a select few over the interests
of everyone else – is secrecy.
[27]
The fact that the
parties to this proceeding consented to confidentiality over Exhibit “B” is
really beside the point, because the interests here, constitutionally-based, go
beyond the private interests of the parties and extend to the public at large.
This is especially so in the present case which concerns important issues of
governance of a First Nations community.
[28]
In this case, if, on a
reading of the motion, I found that a possible case for secrecy over Exhibit
“B” existed, I would have required the parties to give notice to the media in
accordance with the Supreme Court’s cases. But, based on the material filed,
there was no possible case for secrecy.
[29]
In any event, as the
affidavit in which Exhibit “B” appears should not have been filed, the relief
sought in the motion for secrecy is not necessary. The motion shall be
dismissed on that basis.
J. Determination
of the merits of the motions
(1) Opening observations
[30]
The
parties have filed much evidence on the motions. The evidence takes the form of
volumes of affidavits and transcripts from cross-examinations of deponents. The
Court has read all of this material and has given it the most careful
consideration.
[31]
The
Court is mindful of the controversy in the community and the pending election.
It does not wish to influence the election or the appeal to this Court.
Therefore, it will refrain from making unnecessary rulings, observations or
comments on the issues raised by the parties.
(2) The test for
a stay
[32]
In
the stay motion and in the interim stay motion, the three-fold test set out in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 applies. In order to stay the Federal
Court’s judgment, the appellants must demonstrate that there is a serious issue
to be tried, irreparable harm will be suffered if the Federal Court’s judgment
is not stayed, and the balance of convenience lies in favour of staying the
Federal Court’s judgment.
[33]
The
appellants must establish all three of these requirements. Failure to establish
any one of these will result in the dismissal of the motions.
(3) The request
for postponement of the election ordered by the Federal Court
[34]
As
mentioned above, the appellants’ motion seeks, among other things, the
suspension, pending this Court’s determination of the appeal, of the Federal
Court’s order that an election should be held for the offices of Chief and
Councillors of the Bearspaw First Nation.
[35]
In
my view, the appellants have not established on the evidence that the balance
of convenience lies in their favour on this aspect of the Federal Court’s
judgment. As far as allowing the election to proceed is concerned, the benefits
outweigh the detriments.
[36]
On
August 9, 2011 the election will be held. The material shows ample involvement
in the election by the candidates and significant community interest and
participation in the election. Some on the former Council of Bearspaw First Nation
are running for office. They may or may not be re-elected. A new government for
the Bearspaw First Nation will soon assume office and will be able to manage
all of the community’s affairs. This situation is not dissimilar from that
prevailing in Weekusk v. Thunderchild First Nation Appeal Tribunal, 2007
FC 202 where the Federal Court found that the balance of convenience was
against staying a Tribunal’s decision pending review by the Court.
[37]
It
is true that in the appeal this Court might rule in favour of the appellants,
rule that the August 9, 2011 election should not have been held, and restore
the former Chief and former Councillors to their positions on the Bearspaw
First Nation Council. That could result in possible detriments. The former
Chief and former Councillors, if not elected on August 9, 2011, will have been
deprived of their ability to earn salary and exercise their powers between the
date of determination of this motion and the determination of the appeal. Also
the community will have been deprived of governance by the former Chief and
former Councillors during that time.
[38]
But
balanced against those possible detriments is the fact that between now and
this Court’s determination of the appeal, the community will obtain the benefit
of democratically-chosen governance and overall management of the community’s
affairs. The chaos and potential hazards said by the appellants to be caused by
the current absence of governance would be eliminated. The appellants do not
suggest otherwise in their material.
[39]
In
my view, for the foregoing reasons, based on an evaluation of the evidence in
its entirety, the balance of convenience lies against staying the requirement
of the Federal Court in its judgment that that an election be held. This Court
will not stop the election, scheduled for August 9, 2011, from going ahead.
(4) Staying the
remainder of the Federal Court’s judgment
[40]
As
for the remainder of the Federal Court’s judgment, in my view the appellants
have not established the existence of irreparable harm.
[41]
Given
that the election will go ahead as scheduled on August 9, 2011, a new Chief and
Councillors will be elected at that time. Any harms caused by the Federal
Court’s decision to remove the Chief and Councillors will disappear after the
results of the election on August 9, 2011 becomes known. Governance will then
be restored. The appellants’ evidence does not suggest otherwise.
[42]
Therefore,
in considering the remainder of the Federal Court’s decision, the question is
whether irreparable harm will be suffered during the period between now and
when governance is restored.
[43]
In
their material offered in support of the two motions, the appellants raise much
at a level of unhelpful generality. They point to the fact that at the present
time the Bearspaw First Nation is not represented on the Stoney Tribal Council.
Further, in their written submissions they speak of an “extraordinary position
of vulnerability and paralysis,” with “devastating consequences” that impact
“every member.” This is said to arise from “the failure to execute
co-management and indemnity agreements” which “could result in the entire
Stoney Nation going into third party management,” which will in turn “mean that
only essential services will be provided.” “[E]conomic losses would likely
accrue” alongside a dramatic increase in “risk of mass layoffs and program
cuts.” “Cash flow problems” will be worsened, overdraft facilities will be
depleted, payroll cheques will bounce and invoices will go unpaid. The “day to
day conduct of business and governance matters” between now and August 9, 2011
will not happen, they say, with effects on “existing and potential business
relationships,” “future relationships,” “contracts,” and “goodwill.”
[44]
The
respondents contest much of this. Among other things, they point to evidence
that the co-management agreement has been signed and suggest that this will
allow important decisions to be made and funds to flow.
[45]
It
is not necessary to resolve this conflict in the evidence. On the appellants’ evidence
alone, they have not established that irreparable harm will be suffered during
the relevant period.
[46]
There
is no question that the removal of the Chief and Councillors has created a
governance vacuum that has caused at least the potential of harm. Some of this
harm indeed might be significant. With adequate proof in this motion, this
Court might have ruled some of the harm to be irreparable. But the appellants’ proof
has not been adequate.
[47]
By
and large, the evidence offered by the appellants does not establish that the
harm will happen between now and when the officials elected on August 9, 2011
assume office. For example, the appellants raise the possibility – and only a
possibility – that the Stoney Nation will be placed in third party management.
But there is no evidence at all about when that is likely to happen. There is
no evidence as to when the overdraft will be depleted, causing failure to
honour financial obligations. There is no evidence regarding whether any
particular financial obligations must be met before new governance is in place.
There is no evidence of any decisions that have to be made or any
authorizations that have to be given before new governance is in place. Quite
simply, there is no evidence that irreparable harm will be suffered in the next
two weeks or so.
[48]
On
the issue of the irreparable nature of the harm, the evidence offered by the
appellants also falls short. The evidence offered in support of a stay must
demonstrate with particularity – not just assert with generality – the actual
existence or real probability of harm that cannot be repaired later. It is all
too easy for those seeking a stay in a case like this to enumerate problems, call
them serious, and then, when describing the harm that might result, to use
broad, expressive terms that essentially just assert – not demonstrate to the
Court’s satisfaction – that the harm is irreparable.
[49]
A
stay of a judgment must be regarded for what it is. It is the temporary prevention
of a judgment – made on the basis of evidence, submissions and due
consideration – from having force according to its terms. To get that sort of
remedy, the moving party must do more than identify harm or inconvenience. The
moving party must demonstrate (along with the other branches of the RJR-Macdonald test) that harm will actually be
suffered and that it will not be able to be repaired later. It must do this by
providing evidence concrete or particular enough to allow the Court to be
persuaded on the matter.
[50]
That
has not happened here. How will the absence of Bearspaw First Nation
representation on the Stoney Tribal Council over the next two weeks or so give
rise to harm that is irreparable? What invoices fall due over the next two
weeks? Which ones cannot be delayed and why? What exactly is the cash flow
situation? What exactly is the status of the overdraft and why? What are the
consequences to members of the community? Who is suffering, how much, and why?
What exactly is the “vulnerability and paralysis” that the appellant speaks of?
What is the basis for saying that the August 9, 2011 election may result in
Stoney Nation members losing confidence and trust in their government?
[51]
The
appellants have also offered case law that they say suggests that a disruption
in band governance or a loss of prestige on the part of those removed
automatically results in irreparable harm: Montana First Nation v. Rabbit,
2011 FC 420; Orr v. Fort McKay First Nation, 2011 FC 37; Duncan v.
Behdzi Ahda First Nation, 2002 FCT 581. I do not
accept that irreparable harm in those circumstances is automatic and there are
cases to that effect: see, for example, Weatherill v. Canada (Attorney
General)
(1998), 143 F.T.R. 302, 6 Admin. L.R. (3d) 137 at paragraph 30 (T.D.). It must
again be recalled that the moving party is seeking the extraordinary remedy of
preventing a judgment from being in force according to its terms. Judgments should
not be stifled in part on the basis of some sort of presumption of irreparable
harm. Instead, the evidence filed regarding the actual circumstances must be examined
without any pre-conceived notions or presumptions. On these motions, after
examining the evidence, I conclude for the foregoing reasons that the appellant
has fallen short of the mark.
K. Costs
[52]
The
respondent, Wesley First Nation, does not seek its costs. The respondents other
than Wesley First Nation seek their costs on a full indemnity basis.
[53]
While
the appellants’ initial decision to bring their stay motion without notice is regrettable,
by itself that does not warrant the making of an award for enhanced costs. Nor is
there any other conduct on the part of the appellants or any other
circumstances that need to be addressed by such an award.
L. Disposition
[54]
For
the foregoing reasons, the appellants’ motions shall be dismissed. The
respondent, Wesley First Nation does not seek its costs. The remaining
respondents shall have their costs.
“David
Stratas”
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