Date:
20101001
Docket:
A-273-10
Citation: 2010 FCA 253
Present: MAINVILLE
J.A.
BETWEEN:
LITTLE RED RIVER CREE
NATION #447
Appellants
and
JOHN M.
LABOUCAN
Respondent
REASONS FOR ORDER
MAINVILLE
J.A.
[1]
The
Little Red River Cree Nation #447 is seeking a stay of the order of Justice
Gauthier of the Federal Court pending its appeal of this order before this
Court. This order quashed a decision taken by the Chief and five members of
the Council to remove John M. Laboucan from the office of councillor to which
he had previously been elected, as well as from his portfolios with the
community.
[2]
For
the reasons set out below, the stay shall be denied.
[3]
Justice
Gauthier found that the meeting of October 19, 2009 at which the decision was
made had been held in secret and for the sole purpose of removing Mr. Laboucan.
She found that neither Mr. Laboucan, nor four other councillors opposed to Mr.
Laboucan’s removal, nor the band membership had been notified of the meeting.
She also found that the meeting had been held far away from the community so as
to impede knowledge of the meeting.
[4]
Justice
Gauthier also found that the decision was contrary to the policies adopted by
the Council, and in clear breach of the duty of the Chief and Council to act
fairly. She also noted the following at paragraph 54 of her reasons: “Having discussed the matter during the hearing, the Court
is satisfied that the respondent understands that as the decision is quashed,
the applicant should be put in the same position he would have been back in
October 2009.”
[5]
In
its motion, the Little Red River Cree Nation does not directly challenge any of
the findings of Justice Gauthier. Rather, it argues that pursuant to section 35
of the Constitution Act, 1982, its Council is a legislative body
equivalent to a provincial legislature. It adds that its Council is subject to
parliamentary privileges and immunities and that, as a result, the expulsion of
members from its Council is not subject to judicial review.
[6]
Consistent
with this position, the Little Red River Cree Nation asserts that an
irreparable harm would befall it should the courts interfere with the
operations of its Council and that alternatively, since the issue at hand is
one of constitutional jurisdiction and of breach of constitutional
jurisdiction, irreparable harm must be presumed. Similar arguments are made in
respect to the balance of convenience.
[7]
The
issue on this motion is whether the Little Red River Cree Nation can satisfy
the well-established test for granting a stay, namely whether (a) there is a
serious question to be determined in the appeal; (b) irreparable harm will be
suffered should the stay not be granted; and (c) the balance of convenience
favours granting the stay: Manitoba (A.G.) v. Metropolitan Stores Ltd.,
[1987] 1 S.C.R. 110; RJR-MacDonald Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311.
[8]
I
find that none of the elements of the test have been satisfied.
[9]
Though
the questions raised here by the Little Red River Cree Nation are innovative
and bold, this does not necessarily mean they are serious for the purposes of
the test. In this case, the Little Red River Cree Nation has failed to show
that the questions it raises here were addressed before the Federal Court.
Justice Gauthier made no reference to any such questions in her reasons, and
the Little Red River Cree Nation has failed to show in its motion record when
and how such questions were put before her. The inescapable conclusion is that
these questions were not addressed in the Federal Court.
[10]
Though
the Little Red River Cree Nation now asserts in its motion claims based on
section 35 of the Constitution Act, 1982, no evidence was submitted to
sustain such claims. As a general rule, a party may not raise in appeal a new
argument which was not raised in the trial jurisdiction and in relation to
which it might have been necessary to adduce evidence at trial; this is so
principally in order to avoid prejudice to the opposing party who could have
adduced evidence concerning the argument: S.S. “Tordenskjold” v. S.S.
“Euphemia”, (1908), 41 S.C.R. 154 at 163-167; Fralick v. Grand Trunck
Ry. Co. (1910), 43 S.C.R. 494 at 519; Adricon Ltée v. Town of East Angus,
[1978] 1 S.C.R. 1107 at 1116-17; Perka v. The Queen, [1984] 2 S.C.R. 232
at 240. This principle applies where constitutional issues are raised for the
first time in appeal: Bell ExpressVu v. Rex, [2002] 2 S.C.R. 559 at
paras. 58-59; Pardham v. Coca-Cola Ltd., 2003 FCA 11 at para. 31; Somodi
v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 268.
[11]
In
addition, the evidence does not support the claim that the Little Red River
Cree Nation would suffer irremediable harm should Mr. Laboucan occupy the
office of councillor to which he was elected.
[12]
It
is rather Mr. Laboucan who will suffer irreparable harm should a stay be
granted. Moreover, the balance of convenience is overwhelmingly in favour of
Mr. Laboucan.
[13]
Indeed,
Mr. Laboucan is being denied an office to which he has been duly elected. The
Little Red River Cree Nation is not asserting in this case that he holds the
office by electoral fraud or has committed some other serious misdeed affecting
his office. Rather it asserts that he cannot hold his office because the Chief
and five other councillors have so decided. In the particular circumstances of
these proceedings, the continued denial of the office constitutes irreparable
harm, not only to Mr. Laboucan, but also to the interests of the constituents
he represents on the Council.
[14]
In
addition, the record shows that the term of office is approaching, and that
elections for the Council should be held in the spring of 2011. If the stay is
granted, it is likely that Mr. Laboucan will not occupy his office before the
next election, thus depriving him of any meaningful remedy should the Little
Red River Cree Nation not succeed in its appeal. This also weighs the balance
of convenience in his favour.
[15]
Mr.
Laboucan submits that this is an appropriate case for an award of costs in his
favour forthwith, and regardless of the outcome of the appeal, and he seeks a
lump sum award of $2,000, inclusive of disbursements, representing the
approximate equivalent of the high end of column IV, and applicable
disbursements, related to this motion. I agree.
"Robert
M. Mainville"
Email this Content