Cardinal v. Willier, 2002 FCA 93

Date: 20020227

Docket: A-742-01

Neutral citation: 2002 FCA 93

CORAM:        SHARLOW J.A.

BETWEEN:

                                                          CHIEF ALVIN CARDINAL

                                                                                                                              Appellant (Respondent)

                                                                                 and

                                                              RAYMOND WILLIER

                                                                                                                              Respondent (Applicant)

                                                                              - and -

SUCKER CREEK INDIAN BAND #150A also known as the SUCKER CREEK FIRST

NATION, RUSSELL L. WILLIER, RONALD I. WILLIER, JOHN L. WILLIER,

BEATRICE WRIGHT, NORMAN CALLIOU, RODERICK WILLIER,

BARBARA OKEMOW, PAULINE OMINAYAK, MILES RUMLEY

and KEN CARDINAL

Respondents in Trial Division

                                     Motion dealt with in writing without appearance of parties

Order delivered at Ottawa, Ontario, February 27, 2002

REASONS FOR ORDER BY:                                                                                         SHARLOW J.A.

Date: 20020227

Docket: A-742-01

Neutral citation: 2002 FCA 93

CORAM:        SHARLOW J.A.

BETWEEN:

                                                          CHIEF ALVIN CARDINAL

                                                                                                                              Appellant (Respondent)

                                                                                 and

                                                              RAYMOND WILLIER

                                                                                                                              Respondent (Applicant)

                                                                              - and -

SUCKER CREEK INDIAN BAND #150A also known as the SUCKER CREEK FIRST

NATION, RUSSELL L. WILLIER, RONALD I. WILLIER, JOHN L. WILLIER,

BEATRICE WRIGHT, NORMAN CALLIOU, RODERICK WILLIER,

BARBARA OKEMOW, PAULINE OMINAYAK, MILES RUMLEY

and KEN CARDINAL

Respondents in Trial Division

REASONS FOR ORDER

SHARLOW J.A.

The appellant Mr. Cardinal seeks a stay of the order under appeal which was rendered by Mr. Justice Gibson on December 21, 2001. For the reasons stated below, the motion will be dismissed.

The factual background may be summarized as follows. Mr. Cardinal was elected Chief of the Sucker Creek Indian Band #150A in an election conducted on November 28, 2000. After a recount, it was determined that Mr. Cardinal had received 120 votes, and that the respondent Raymond Willier had received 119 votes. Appeals from the election were filed in accordance with the Customary Election Regulations of the Band. Those Regulations contemplate the appointment of an Election Appeal Committee according to stated criteria. No such Election Appeal Committee was established, for reasons stated by the Electoral Officer in a letter dated December 18, 2000.

Raymond Willier filed an application for judicial review which, by the time of the hearing, was restricted to a review of the decision of the Electoral Officer not to form an Election Appeal Committee. Mr. Justice Gibson concluded after a hearing that the Electoral Officer erred in reaching that decision, and on that basis he issued the order under appeal. The portions of the order that are relevant to this motion read as follows:

1.        That the Election Appeal Period provide for in the Customary Election Regulations of the Sucker Creek First Nation #150A has not expired in relation to the election for chief and councillors held on the 28^th of November, 2000;

2.         That the Electoral Officer appointed in relation to the election for chief and councillors held on the 28^th of November, 2000 remains in office;

3.         The decision of the said Electoral Officer dated the 18^th of December, 2000, determining not to appoint an Election Appeal Committee in relation to complaints filed with respect to the results of the said election is set aside and the question of establishment of an Election Appeal Committee to deal with such complaints is referred back to the Electoral Officer for redetermination in a manner consistent with law and with the reasons for this Order.

Mr. Cardinal has appealed the December 21, 2001 order.

Mr. Cardinal now seeks a stay pending the determination of the appeal. Raymond Willier opposes the application for a stay. His position is supported by the respondents Russell L. Willier, Ronald I. Willlier and John L. Willier. The respondents Ken Cardinal, Norman Calliou, Roderick Willier, Barbara Okemow, Pauline Ominayak and Miles Rumley take no position on the stay.

The Electoral Officer was not named as a party in the judicial review proceedings and is not a party to this appeal. She has advised the Court through her counsel that she is concerned solely with performing her duties as Electoral Office and that she takes no position on this motion and does not intend to participate in the appeal.

Generally, a motion to stay the order of a court pending the disposition of an appeal cannot be granted unless the tests in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 344, are met. A preliminary assessment must be made of the merits of the appeal to ensure that there is a serious question to be determined. If there is a serious question, it must be determined whether Mr. Cardinal would suffer irreparable harm if the stay is not granted and his appeal succeeds. Harm is irreparable if it cannot be cured or quantified in monetary terms. If there would be irreparable harm to Mr. Cardinal if the stay is not granted and his appeal succeeds, an assessment must be made as to which of the other parties would suffer greater harm from the granting or refusal of the stay.

In this case, Mr. Cardinal, the applicant for the stay, has presented no evidence. Therefore, I have no basis on which to determine whether he will suffer irreparable harm if the stay is not granted and his appeal succeeds.

It is argued for Mr. Cardinal that I should treat this as a case where the only question is whether there is a serious issue to be tried. This argument is based on the following comments of Sopinka and Cory JJ. in RJR MacDonald at page 338-40:

What then are the indicators of "a serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. The decision of a lower court judge on the merits of the Charter claim is a relevant but not necessarily conclusive indication that the issues raised in an appeal are serious: see Metropolitan Stores, supra, at p. 150 [Manitoba (Attorney General) v.Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110]. Similarly, a decision by an appellate court to grant leave on the merits indicates that serious questions are raised, but a refusal of leave in a case which raises the same issues cannot automatically be taken as an indication of the lack of strength of the merits.

Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.

Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits. The first arises when the result of the interlocutory motion will in effect amount to a final determination of the action.[...]

The second exception to the American Cyanamid prohibition on an extensive review of the merits arises when the question of constitutionality presents itself as a simple question of law alone. This was recognized by Beetz J. in Metropolitan Stores, at p. 133:

There may be rare cases where the question of constitutionality will present itself as a simple question of law alone which can be finally settled by a motion judge. A theoretical example which comes to mind is one where Parliament or a legislature would purport to pass a law imposing the beliefs of a state religion. Such a law would violate s. 2(a) of the Canadian Charter of Rights and Freedoms, could not possibly be saved under s. 1 of the Charter and might perhaps be struck down right away; see [1984] 2 S.C.R. 66">Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66, at p. 88. It is trite to say that these cases are exceptional.

A judge faced with an application which falls within the extremely narrow confines of this second exception need not consider the second or third tests since the existence of irreparable harm or the location of the balance of convenience are irrelevant inasmuch as the constitutional issue is finally determined and a stay is unnecessary.

Here, Mr. Cardinal is relying on the second exception. It is argued that this appeal will require a determination of the constitutionality of the Customary Election Regulations and the ability of off-reserve members of the Band to vote. However, I have been presented with no evidence to establish the factual foundation for such an argument. It is impossible for me to conclude that the constitutional questions sought to be raised are simple questions of law. Therefore, in this case the second and third tests must be considered.

There being no evidence that Mr. Cardinal will suffer irreparable harm if the stay is not granted and his appeal succeeds, I must dismiss the motion for a stay of the order of Mr. Justice Gibson. The respondent Raymond Willier is entitled to costs of this motion in any event of the cause.

"K. Sharlow"

J.A.