Docket: T-2964-25
Citation: 2025 FC 1991
Toronto, Ontario, December 17, 2025
PRESENT: Madam Justice Go
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BETWEEN: |
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ROMEO THOMAS, TWYLA WHITEHEAD AND HARRIET THOMAS |
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Applicants |
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and |
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THE COUNCIL OF THE PELICAN LAKE FIRST NATION |
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Respondent |
ORDER AND REASONS
I. Overview
[1] Chief Romeo Thomas [Chief Thomas], Harriet Thomas and Twyla Whitehead [together the “Applicants”
] seek a judicial review of their removal from elected office by the Council of Pelican Lake First Nation [“Council”
or “Respondent”
].
[2] Pelican Lake First Nation [“PLFN”
or “First Nation”
] is an Indian Band under Treaty 6 and the Indian Act, RSC 1985, c. I-5 [Indian Act]. PLFN conducts their elections to the Council under a custom election code, the Pelican Lake Election Act [Election Act].
[3] In a general election held on March 27, 2025, Chief Thomas was elected as Chief and the other two Applicants were elected as Councillors. The Applicants were removed from their elected positions pursuant to three Band Council Resolutions [BCRs] dated July 25, 2025 issued by the Council and signed by four other Councillors of the PLFN, Lee Bill, Donny Rabbitskin, Jimmy Bill and Greg Bill [together “Respondent Councillors”
], acting in quorum [Decision].
[4] According to subsection 14(1) of the Election Act, the Council is composed of one Chief and six Councillors and the “Quorum”
required for BCRs is four.
[5] The Council issued these BCRs to remove the Applicants on the basis that they have been absent from four consecutive meetings without being authorized to do so. The Applicants missed four consecutive Council meetings in July 2025.
[6] In their application for judicial review of the Decision, the Applicants argue that the Respondent Councillors acted outside their jurisdiction in removing them from Council. The Applicants assert that the Respondent did not have a duly convened meeting when passing the BCRs removing them, and the four meetings that the Applicants missed were also not duly convened. The Applicants submit that the Decision was procedurally unfair and exhibited bias.
[7] For the reasons set out below, I grant the judicial review as I find the Decision was procedurally unfair.
II. Background
[8] While not elected as a single slate, the Applicants appear to share the same agenda; they regard themselves as councillors who are pushing for more accountability and transparency at the Council. The Applicants also consider the Respondent Councillors acting as a “fixed”
quorum or “rogue”
quorum who resist the Applicants’ accountability agenda.
[9] According to Chief Thomas, after the March general election, he requested to receive copies of the PLFN’s financial and other records from the First Nation’s band manager, Jim Ramsay, relating to the business, affairs and general operations of the First Nation and did not receive them. Eventually, Chief Thomas requested the First Nations Bank of Canada for copies of some of the monthly account statements.
[10] Concerned about certain payments made to band members and councillors in the days leading up to the election, Chief Thomas brought the information about these payments to the attention of some members of the PLFN. Members of the PLFN then held at least three membership meetings in May, June and July 2025 at which Chief Thomas attended. One of these membership meetings was held on July 14, 2025.
[11] According to Chief Thomas, the membership also asked Mr. Ramsay and the Respondent Councillors to attend the community meetings. Only Councillor Jimmy Bill attended the community meeting on one occasion.
[12] At the July 14, 2025 membership meeting, the members passed a unanimous vote to terminate Mr. Ramsay and to remove Lee Bill, Donny Rabbitskin, and Greg Bill from office. Chief Thomas then sent letters to the three Councillors declaring them removed from office by members on July 17, 2025. After receiving legal advice that the membership of the PLFN do not have the authority to remove elected leadership at membership meetings under the Election Act, Chief Thomas formally retracted his position that the Councillors were lawfully removed as elected leaders.
[13] Meanwhile, the Respondent Councillors, acting as a quorum, continued to call meetings of Council. The Respondent Councillors also sent the Applicants a letter dated June 16, 2025, which states that decisions concerning the business and affairs of PLFN must be made at duly called meetings of Council, where all members would have the right to speak and vote on the matters at hand. The letter also warned the Applicants that continued failure to respect the custom and traditions for governance of the PLFN would have legal consequences.
[14] On July 13, 2025, Chief Thomas received texts from Mr. Ramsay notifying him of a Council meeting taking place over two days on July 14 and 15, called by “a quorum,”
to be held in Saskatoon, 230 km from the Reserve. Chief Thomas directly texted Mr. Ramsay that he has prior commitments and would not be attending. He also asked Mr. Ramsay to reschedule the meetings. The other two Applicants indicated in the Council’s text group chat that they would not need any hotel rooms that were booked.
[15] Chief Thomas alleges that Mr. Ramsay and the four remaining Councillors scheduled two other subsequent Council meetings in July knowing beforehand that his attendance was not going to be possible.
[16] All the Applicants did not attend the four Council meetings held on July 14-15, July 17, July 22, and July 24, 2025.
[17] On July 25, 2025, the Respondent issued a BCR removing the Chief Thomas from Council by quorum of the Respondent Councillors. The Respondent also issued a BCR removing the other two Applicants. Other than the name of the individual being removed, the BCRs removing Applicants Harriet Thomas and Twyla Whitehead contain identical wording as that in the BCR removing Chief Thomas.
[18] These BCRs cite paragraph 15(1)(d) of the Election Act which states that: “The offices of Chief and Councillor shall immediately become vacant when the person holding that office: […] has been absent from meetings of the Council for four (4) consecutive meetings without being authorized to do so.”
[19] The Respondent Councillors passed another BCR on August 7, 2025, directing a by‑election, and then thereafter another BCR appointing an election officer.
[20] Through Indigenous Services Canada [ISC], Chief Thomas obtained digital copies of eight BCRs, including the BCRs to remove him and the other two Applicants from Council.
[21] On August 13, 2025, the Applicants filed an application for judicial review seeking to quash the Decision removing them from elected office.
[22] On September 10, 2025, I granted an interim injunction to halt the by-election. I also issued an ancillary order compelling the Council and Mr. Ramsay to provide Chief Thomas with copies of the financial, corporate, operations and other records he had requested, as well as all the minutes of Council meetings held since the general election.
III. Issues and Standard of Review
[23] Based on the parties’ submissions, the issues arising from this judicial review application are as follows:
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Did the Respondent exceed its jurisdiction in removing the Applicants from elected office, acting outside of the legislated framework?
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Did the Respondent’s decision to remove the Applicants from elected office violate basic principles of procedural fairness?
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Was there a reasonable apprehension of bias?
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Should the Court make an ancillary order?
[24] The Applicants submit that the correctness standard of review applies to procedural fairness questions, citing McKenzie v Mikisew Cree First Nation, 2020 FC 1184 [McKenzie] at para 29. They submit that the reasonableness standard applies to all other questions: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65; McKenzie at paras 26-27; Lower Nicola Indian Band v York, 2013 FCA 26 at para 6.
[25] The Respondent submits that issues involving interpretation of written Indigenous laws, including a customary election code, should be reviewed against the standard of reasonableness: Bacon St-Onge v Conseil des Innus de Pessamit, 2017 FC 1179 at para 71. Para 71 continues on to state “‘[h]owever, Justice Stratas in
Fort McKay First Nation v Orr, 2012 FCA 269 at para 11, noted that the reasonableness standard, in this type of review, is similar to the correctness standard and that the decision must be supported by the words of the election legislation, or another source of power’ (
Mckenzie v Lac La Ronge Indian Band, 2017 FC 559 at para 39).”
[26] In any event, I note that this Court has consistently found that the interpretation of a First Nation’s custom, including jurisdiction granted pursuant to those laws and custom, is reviewable on a reasonableness standard: Johnny v Dease River First Nation, 2024 FC 1636 at para 57, citing Bellegarde v Carry the Kettle First Nation, 2024 FC 699 at para 96. I will therefore apply the reasonableness standard to the first issue.
[27] The standard of review for procedural fairness issues is functionally a standard of correctness. No deference is owed to the decision-maker. The Court is to ask itself whether the process was fair and just, taking into consideration the particular circumstances of the case. This includes asking whether the Applicant knew the case to be met and had a full and fair chance to respond: Caron v Canada (Attorney General), 2022 FCA 196 at para 5; Mission Institution v Khela, 2014 SCC 24 at para 79; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54, 56; and Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35.
IV. Analysis
A. Did the Respondent exceed its jurisdiction in removing the Applicants from elected office, acting outside of the legislated framework?
[28] The Applicants’ main position is that the Decision to remove the Applicants from elected office were neither made in accordance with applicable provisions of the Election Act nor of the Indian Act, resulting in the Respondent Councillors exceeding their jurisdiction or authority. The Applicants submit that the BCRs removing them from Council are ultra vires as the Respondent Councillors do not have the authority to consider the question they did. While under the Election Act, four absences from meetings constitute automatic vacancy, the Applicants argue this can only be the case when a member has missed four duly convened meetings, without authorization, and after all applicable rules of law have been followed. The Applicants submit that the meetings called by the Respondent Councillors were not duly convened.
[29] For the reasons set out below, I find the Applicants have not established that the Respondent acted ultra vires or that the Respondent Councillors lacked authority to call the meetings and issue the BCRs to remove the Applicants from office. I further find that the Applicants failed to demonstrate that the meetings in question were not duly convened.
(i) The Election Act and the broader legislative context do not require meetings to be called by the Chief
[30] The Applicants assert that under the legislative framework, only the Chief is authorized to call meetings at PLFN.
[31] The Election Act does not address the question of who is authorized to call Council meetings at PLFN. The Applicants argue that the Election Act is not a complete code for the governance of the First Nation. It is primarily a code regarding elections which also covers removal from office. Its adoption removed the First Nation from the operation of the Indian Act’s election provisions, but not the rest of the Indian Act. Likewise, the Applicants argue that the Council remains subject to most of the Indian Band Council Procedure Regulations, C.R.C., c.950 [IBCPR].
[32] The Applicants submit that in spite of any shortcomings in the drafting of the Election Act, the Court should make efforts to understand its meaning by applying the recognized methods of legal interpretation, namely, consideration of the text, context and purpose of the provisions at issue: Ojibway Nation of Saugeen v Derose, 2022 FC 531 at para 34.
[33] The Applicants note that under “Definitions”
of the Election Act, subsection 2(a) defines “Band Council”
as “those Band members elected pursuant to this Act who are thereby empowered to act on behalf and for the benefit of the Pelican Lake Band.”
Subsection 2(b) further defines “BCR”
as “a formal expression of the will of the Chief and Council set out in the prescribe form and executed by a quorum of the Council.”
However, the Applicants conceded at the hearing before me that the inclusion of the term “Chief and Council”
under subsection 2(b) does not imply that the Chief must always be included in a decision to issue a BCR to make it valid. Instead, Councillors acting as a quorum can also issue a BCR.
[34] The Applicants further cite subsection 3(1) of the IBCPR which requires the first meeting of the council to be no later than one month after the election and section 4 that states: “The chief of the band or superintendent may, at any time, summon a special meeting of the council, and shall summon a special meeting when requested to do so by a majority of the members of the council.”
[35] Finally, the Applicants point to the letter from ISC dated July 31, 2025, which states that the BCRs removing the Applicants from office are not actionable because the decisions were not made in accordance with the Election Act by a meeting of the Council duly convened.
[36] I reject the Applicants’ arguments.
[37] As the Applicants concede, the Election Act is not a complete code. There are no provisions governing who should call Council meetings. Further, simply because the Election Act is an incomplete code, does not necessarily mean the Court should look to the IBCPR to determine the issues at hand.
[38] As the Respondent points out, and I agree, the IBCPR does not apply to PFLN because the IBCPR defines “council”
as “council of a Band elected pursuant to s.74 of the
Indian Act,”
whereas the PLFN is elected pursuant to its custom election legislation. The Respondent’s position was previously confirmed by this Court in Whitehead v Pelican Lake First Nation, 2009 FC 1270 at para 38.
[39] Even if I were to look to IBCPR to interpret what constitutes a duly convened meeting, I note that the IBCPR is silent as to who has the authority to call a Council meeting. Moreover, the IBCPR provides at section 6 that “a majority of the whole council shall constitute a quorum.”
As the four Respondent Councillors constitute a quorum, they would not be in breach of the requirements of the IBCPR should they decide to call a meeting as a quorum.
[40] Although I agree that the PLFN is still subject to the Indian Act, the provisions that the Applicants rely on also do not prohibit a quorum of council to call band council meetings.
[41] While the Applicants cite “section 3(b)”
of the Indian Act in support of their argument, I believe the Applicants seek to rely on paragraph 2(3)(b). Subsection 2(3) of the Indian Act reads as follow:
Exercise of powers conferred on band or council
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Exercice des pouvoirs conférés à une bande ou un conseil
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2(3) Unless the context otherwise requires or this Act otherwise provides,
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2(3) Sauf indication contraire du contexte ou disposition expresse de la présente loi :
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(a) a power conferred on a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the electors of the band; and
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a) un pouvoir conféré à une bande est censé ne pas être exercé, à moins de l’être en vertu du consentement donné par une majorité des électeurs de la bande;
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(b) a power conferred on the council of a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the councillors of the band present at a meeting of the council duly convened.
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b) un pouvoir conféré au conseil d’une bande est censé ne pas être exercé à moins de l’être en vertu du consentement donné par une majorité des conseillers de la bande présents à une réunion du conseil dûment convoquée.
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[42] These provisions confirm that the majority of the elected officers can exercise the power of the band council. They do not, as the Applicants urge the Court to so interpret, prohibit the council from exercising its power if the Chief is not present at a meeting, or if the meeting is not called by the Chief.
[43] Finally, I find the letter dated July 31, 2025 from ISC does not in any way support the Applicants’ position. Understandably, the letter made clear that the ISC “takes no position with respect to the governance dispute arising in the [PLFN].”
ISC further explained in the letter: “It is not ISC’s place to interpret the First Nation’s election act or make determinations regarding the validity of BCRs and status of members of the council.”
It is for these reasons that the ISC requested “confirmation that the BCRs were passed at duly convened meetings as per the
Election Act.”
Nowhere did the ISC suggest in its letter that the BCRs were inactionable; rather, ISC was seeking confirmation that they were.
[44] In short, read altogether – and even assuming that the IBCPR applies to PLFN – I do not find the Election Act, the IBCPR and the Indian Act support the Applicants’ argument that the Respondent was acting ultra vires by calling the meetings in the manner that it did and in issuing the BCRs.
(ii) The Applicants fail to demonstrate the meetings in question were not duly convened
[45] Having found that the legislative framework does not support the Applicants’ position, I will now examine whether other sources of law including the PLFN’s customs and case law may support their arguments.
[46] The Applicants submit that the evidence of the Respondent indicates that the July 14-15, 17, 22 and 24 “Chief and Council meetings”
were all special meetings called by the Respondent Councillors, held for the purpose of conducting interviews for jobs at the band school. While there is no discrete definition of what duly convened means under the Indian Act, the IBCPR or the Election Act, the Applicants submit the case law confirms that the requirements of duty convened is tied to procedural fairness issues, and that, as a bare minimum, there must be the giving of reasonable, i.e., more than 24 hours, written notice to all members of the Council. Yet in this case, the Respondent Councillors called these special meetings on short notice, via text from the band manager, with no proposed agenda items, at a location two and a half hours away from the Reserve where the Applicants reside.
[47] The Applicants further submit that under the PLFN customs, a special meeting must be called by the Chief on his own or by him at the request of any four members of the council; the Respondent Councillors thus have no authority to call these meetings without the Chief.
[48] In addition, for at least one of the July meetings, the evidence indicates that the Respondent Councillors called the meeting knowing the Applicants were unable to attend, and for at least three of the meetings, they purported to call them for dates and time knowing Chief Thomas could not attend.
[49] The Applicants cite Justices Bastarache and LeBel, writing for the majority in Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190 at para 59: “The tribunal must interpret the grant of authority correctly or its action will be found to be
ultra vires or to constitute a wrongful decline of jurisdiction: D. J. M. Brown and J. M. Evans,
Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 14-3 to 14-6.”
[50] Further, citing Steinhauer v Saddle Lake Cree Nation, 2025 FC 1362 [Steinhauer] at paras 23-24; Brass v Key First Nation, 2024 FC 1074 at para 61, the Applicants argue that the Respondent Councillors acting in quorum, usurped the power of the Chief and of the Chief and Council, in calling and holding these meetings, and in so doing, exceeded their authority. The Applicants further argue that these were not Chief and Council meetings, but rather meetings of a subgroup of Council, or “rogue quorum,”
and its decisions cannot be said to comport with the Election Act, including the definitions of BCR as described in the Election Act.
[51] In his Affidavit dated September 7, 2025 [Thomas Affidavit #1], Chief Thomas stated that: “In my experience, the Chief of Pelican Lake First Nation calls Chief and Council meetings. In my understanding, the Chief alone has this authority. Alternatively, he should do so if a quorum of Council requests the Chief to call one.”
The Applicants rely on this evidence to submit that the meetings in July were special meetings that were required to be called by the Chief.
[52] I am not persuaded by the Applicants’ arguments.
[53] As this Court has confirmed, the custom of the First Nation is an important source of Indigenous law: Whalen v Fort McMurray No. 468 First Nation, 2019 FC 732 [Whalen] at para 32. The Court in Whalen defines custom as “a consensual and community-based means of producing law that, while not materially constrained by ancestral practices, enables contemporaries to find their own path between tradition and modernity:”
Whalen at para 32, citing Ghislain Otis, “Elections, Traditional Governance and the Charter”
in Gordon Christie, ed, Aboriginality and Governance: A Multidisciplinary Perspective (Penticton, BC: Theytus Books, 2006) 217 at 220. Further, custom can be established through the enactment of a codified law, but it can also be established through practice and conduct: Whalen at para 36.
[54] As Justice Grammond continued at para 32 in Whalen: “This Court has been prepared to recognize the existence of a rule of Indigenous law when it is shown to reflect the broad consensus of the membership of a First Nation:
Bigstone v Big Eagle, [1993] 1 CNLR 25 (FCTD) at 34.”
[55] Finally, as Justice Grammond concluded at para 41, “custom must be proved by the party who alleges it.”
[56] The burden is thus on the Applicants to establish that as part of PLFN customs, based on a broad consensus, only the Chief has the authority to call a meeting, whether on his own or at the request of the quorum. I find the Applicants fail to discharge their burden.
[57] According to the Respondent, there are two ways to call a Council meeting, either the Chief or a quorum of the Council may call a PLFN meeting. The Respondent points to Lee Bill’s September 9, 2025 Affidavit stating that, since the Band Election in March 2025, some meetings were scheduled by Chief Thomas while other times scheduled by a quorum of Council. Meetings are organized via requesting Band Manager Mr. Ramsay the date and location, and he would notify other members of the Council through text. Lee Bill further stated that there is no formal practice or tradition in the governance of the PFLN that only permits the Chief of the PLFN to call a meeting of Chief and Council. The Respondent points out that Chief Thomas himself acknowledges the ability of a quorum of Council to call a meeting of Chief and Council in Thomas Affidavit #1 stating the Chief alone can call a Council meeting or should do so when requested by a quorum of the Council.
[58] I further note that there are multiple text messages sent in a group chat that includes Mr. Ramsay, all six councillors and Chief Thomas since April 1, 2025, with notices about Chief and Council meetings. These notices were sent by Mr. Ramsay with no indication as to who called the meetings. The text messages, attached to the Affidavit of Jim Ramsay dated September 9, 2023 [Ramsay Affidavit], also include responses from the Applicants, including Chief Thomas on some occasions, confirming receipt of the meeting notices.
[59] In his Affidavit, Mr. Ramsay further explained that he looks after communicating meeting dates in consultation with Council, as well as the location for the meetings. Further, in order to provide notice of Council meetings, Council has a text chain. According to Mr. Ramsay: “Council has a long past practice of using text messaging in these situations. In my experience, this has been the most effective way to communicate to all Chief and Council pertinent information including dates, times and locations of Council meetings.”
[60] The evidence before me indicated that the Applicants first raised concerns about the calling of the Council meetings in July 2025. In his affidavit dated September 24, 2025 [Thomas Affidavit #2], Chief Thomas attached a series of text messages between him and Mr. Ramsay. These text messages include one dated July 13, 2025, at 9:53 a.m. from Chief Thomas advising Mr. Ramsay: “Due to prior commitments. I have told you. To consult me to meetings. i am busy Monday n Tuesday. Reschedule Monday n Tuesday s meetings.”
At 12:34 p.m. on the same day, Mr. Ramsay responded: “Good afternoon Chief Romeo. Meetings are called by a quorum of Cooncil [
sic]. I will pass your message along.”
On July 14, 2025, Chief Thomas replied: “Reminder…I am the Chief elected by Pelican Lake First Nation. I invited you and the quorum to the meeting membership called on Monday July 14, 10 am.”
[Emphasis added].
[61] While these text messages confirm that Chief Thomas advised Mr. Ramsay that he was unable to attend the July 14 and 15 meeting and requested the meeting be rescheduled, there was no indication that Chief Thomas questioned the authority of the quorum to call the meetings.
[62] Indeed, while they now take issue with the authority of the Respondent Councillors in calling meetings as well as the short notice they received for meetings, the Applicants do not dispute the practice as described in the Ramsay Affidavit is the one that has been in place.
[63] I also note that under cross-examination, Chief Thomas agreed that so long as a quorum of council asks the Chief to call a meeting, the Chief would be obligated to do so.
[64] Thus, I find the Applicants fail to establish that the customs of PLFN only permits the Chief of the PLFN to call a meeting of Chief and Council, either through formal practice or tradition.
[65] The only remaining issue that I need to decide is whether the meetings in question are duly convened, as the concept is considered in case law.
[66] The Applicants rely on Steinhauer at para 24 and Brass at para 61 to argue that the meetings in question were not duly convened and that the Respondent Councillors acted as “rogue council”
to usurp the power of the Chief.
[67] Steinhauer was a case dealing with a motion to stay a removal from Council. Justice Blackhawk noted at para 24 that, at a minimum, quorum is the number of persons required to constitute a valid meeting. She went on to note that “this Court has noted that democratic principles and procedural fairness require more than simply achieving minimum quorum, rather the ‘spirit and intention’ should be respected. In my view, in addition to the minimum requirement for quorum, the jurisprudence indicates that a duly convened meeting requires that notice of the meeting be provided to all members of council, and that all members of council have the ability to participate,”
quoting from Key v Cote, 2025 FC 1329 [Key] at paras 127-133, citing Peguis First Nation v Bear, 2017 FC 179, [Peguis] at para 58; Vollant v Sioui, 2006 FC 487 [Vollant] at para 36 and Balfour v Norway House Cree Nation (F.C.), 2006 FC 213 (CanLII), [2006] 4 FCR 404 [Balfour] at paras 12-14. However, ultimately Justice Blackhawk did not rule on the question of whether the quorum acted outside of their authority when she granted the interim injunction order staying the applicant’s removal from Council.
[68] I also find the factual circumstances of the cases cited above distinguishable from the case at hand.
[69] For instance, in Key, there was evidence illustrating that the Key Nation’s practice was to follow the council regulations to govern the conduct of the Key Nation Council meetings, and the Respondents had not persuaded the Court that the meetings they held satisfied the elements of a duly convened meeting as set out in the applicable council regulations. In Peguis, the decision in question took place in a private meeting after the Chief had already adjourned the council meeting. In Vollant, the band resolutions in question were adopted at a band meeting rather than a council meeting. In Brass, the band council chose to have its elections governed by section 74 of the Indian Act and therefore it was subject to the IBCPR provisions. Finally, in Balfour, the Court found the “quorum of Council”
to be a subgroup of councillors who operated separately from the rest of the band council and did not follow the rules laid out in the relevant guidelines for conducting duly convened meetings of council.
[70] None of these circumstances are present in the case at hand.
[71] Furthermore, the Court in Balfour cautioned against confusing a “subgroup”
“with what constitutes the quorum of the Band councillors at a convened Council meeting that is subject to the guidelines and paragraph 2(3)(b) of the
Indian Act:”
Balfour at para 5. While the Applicants may consider the Respondent Councillors acting as “rogue quorum,”
the evidence before the Court confirms that the Respondent Councillors provided notices for all the council meetings in question.
[72] As the Applicants point out, and I agree, there is evidence that Chief Thomas gave notices about his inability to attend some of the meetings, and there is an issue of whether the Applicants were given prior notice about their removal. This being said, I find these issues to be more appropriately dealt with under the issue of procedural fairness.
[73] In sum, I find the Applicants fail to demonstrate that the four meetings called by the Respondent Councillors in July as well as the meeting at which they issued the BCRs were not duly convened.
B. Did the Respondent’s decision to remove the Applicants from elected office violate basic principles of procedural fairness?
[74] Citing Tourangeau v Smith’s Landing First Nation, 2020 FC 184 [Tourangeau] at para 55, the Applicants argue that the content of the duty of fairness depends on the particular circumstances. They submit that the Respondent owed a high duty of fairness in making the Decision given that it dealt with removing the Applicants from elected office: Tourangeau at para 56. They then argue that this high duty required the Respondent to provide notice and give the Applicants an opportunity to make representations. They also allege that the Respondent weaponized the Election Act provisions in bad faith to remove the Applicants in a capricious manner. The Applicants do not cite any further authority to make this allegation.
[75] The Respondent submits that procedural fairness was not denied in removing the Applicants. They rely on Crawler v Wesley First Nation, 2016 FC 385 [Crawler] to support their position that the paragraph 15(1)(d) of the Election Act provides for an automatic removal from office when the elected officer has been absent from four consecutive meetings without being authorized to do so.
[76] The Respondent notes that, in Crawler, Justice Russell considered several factors, including the First Nation’s customary procedure of allowing a member of the elected Council to seek authorization to not attend a meeting, the Band Council’s discretionary powers to control its meetings, and the applicant’s knowledge and familiarity with the First Nation’s custom involving authorization for absences. At para 51, the Court found the Councillors have been afforded the duty of fairness.
[77] The Respondent points out that the Applicants similarly did not seek authorization to be absent from any of the four Council meetings. For the July 14-15 meeting, the Applicants only responded to the meeting notice that they did not need hotel rooms. Chief Thomas only reported that he had other commitments. None of the Applicants responded to the notices in July 17, 22, 24 or sought authorization to be absent in these meetings. There is no evidence to suggest that the Applicants were not aware of the consequence of their absence pursuant to paragraph 15(1)(d) of the Election Act, and the only plausible reason that the Applicants offered for their absence is that they believed the Band Manager and the three Councillors had been removed from office. Considering these circumstances, the Respondent submits that they were not required to provide the Applicants an additional opportunity to make representations about their absences, contrary to the Applicants’ position.
[78] I reject the Respondent’s submission. Instead, I agree with the Applicants that the Decision to remove them from office was procedurally unfair.
[79] I find that Crawler is distinguishable on the facts. For instance, the Court in Crawler noted, at para 34, that the applicant received full notices of the meetings with a copy of agenda for each meeting, and there was uncontradicted evidence that the applicant confirmed he would attend each of the meetings but failed to attend them. Further, the Court found that the applicant at no time believed that there were any grounds for his not attending any of the three meetings since he confirmed his attendance: Crawler at para 41.
[80] In the case at hand, the notice was provided via text messages without an agenda, and the Applicants did not confirm their attendance for the meetings. Moreover, the evidence shows that Chief Thomas not only indicated his inability to attend the July 14-15 meeting because of the scheduled community meeting, he also requested the council meetings to be rescheduled. There is no evidence before me to suggest that the Respondent considered Chief Thomas’ reason for not attending the July 14-15 meeting, or his request for rescheduling, at the July 25, 2025 meeting when the BCRs were issued.
[81] In my interlocutory order dated September 10, 2025, at para 23, I remarked: “While the Respondent relies on its June 16, 2025 letter to argue that the Applicants have been warned about the consequences of not abiding by the PLFN custom and traditions, I note that although the letter included a list of examples of alleged infractions of the PLFN custom and traditions, absent from the list was the Applicants’ failure to attend Council meetings. In any event, the letter was issued before any of the alleged absences from council meetings took place.”
[82] I note that the Respondent no longer relies on the June 16, 2025 letter as notice to the Applicants. Rather, they now assert that the removal is automatic based on the Election Act. Implicit in this argument is the Respondent’s tacit acknowledgement that they never provided any notice to the Applicants before issuing the BCRs to remove them.
[83] I find Justice Kane’s comment in Peguis in para 58 particularly instructive:
Democracy and procedural fairness require more than pointing to provisions of the Band Council Procedure Regulations and the Indian Act without respecting the spirit and intention of the provisions in their entirety. In the present case, although all Councillors were present at the meeting on June 10, 2016, and the Chief was aware of the outstanding concern of some Councillors regarding the PSB, the Applicants had no advance notice that BCR 38 would be tabled, or of its wording, and no opportunity to prepare and to make representations. In addition, the Chief had adjourned the meeting. Section 12 of the Band Council Procedure Regulations provides that the presiding officer--i.e. the Chief--shall place the resolution before Council “for consideration.” This did not happen.
[Emphasis added.]
[84] Similarly in this case, the Applicants were never given advance notice that the BCRs to remove them from Council would be tabled and had no opportunity to prepare and make representations.
[85] Even through the Election Act provides for the removal of councillors who are absent from meetings without being authorized to do so, in my view, it does not give the Respondent carte blanche to remove elected officers without considering the question of whether the Council should authorize the absences, either before or after the absences, and without giving the councillors in question due process before ordering their removal. The Respondent’s failure to consider whether to authorize the Applicants’ absences and their failure to give the Applicants notice before issuing the BCRs render the Decision procedurally unfair.
C. Was there a reasonable apprehension of bias?
[86] The Applicants submit that there was a reasonable apprehension of bias on the part of the Respondents. They cite Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII), [2003] 2 S.C.R. 259 [Wewaykum] at para 60 which defines “reasonable apprehension of bias”
based on Justice de Grandpré’s comment in Committee for Justice and Liberty v. National Energy Board, supra, at p. 394:
. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
[87] The Applicants point to the fact that the parties are political rivals who ran on separate “slates”
during the March election and have been in conflict over a number of issues since. For instance, the Applicants had requested a range of financial and governance documents from the Respondent Councillors which were not provided until after ordered to do so by the Court. The Applicants have also been pressing the Respondent Councillors to attend community meetings, but the latter refused to do so because they were not called by Council, according to Councillor Lee Bill on cross-examination.
[88] I am not convinced by the Applicants’ submissions.
[89] The threshold for finding bias or a reasonable apprehension of bias is high, as decision-makers are presumed to be impartial: Sagkneeg First Nation v Canada (Attorney General), 2015 FC 1113 at para 105. The Applicants bear the onus of demonstrating bias: R. v S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para 114 and ABB Inc. v Hyundai Heavy Industries Co., 2015 FCA 157 at para 55. This inquiry is highly fact-specific and must be grounded in evidence: Wewaykum at para 77 and Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 at para 26.
[90] The fact that the Applicants and the Respondent Councillors are political rivalries does not, per se, substantiate the Applicants’ claim of reasonableness apprehension of bias. The only concrete evidence that the Applicants point to, is also insufficient to demonstrate bias.
[91] The Applicants argue that Councillor Lee Bill implied in his cross-examination that the Respondent Councillors removed the Applicants because of the Applicants’ resolution to remove himself and two other Respondent Councillors at the July 14 community meeting.
[92] I do not share the Applicants’ interpretation of Lee Bill’s evidence. Instead, I find Lee Bill’s evidence as stating that the Respondent Councillors were following the Election Act, whereas Chief Thomas’ removal of the three Councillors did not follow the Election Act. While different councillors may have different interpretation of the Election Act, that per se does not give rise to an apprehension of bias.
D. Should the Court issue an ancillary order?
[93] The Applicants seek an ancillary Order designed for the good governance of the First Nation, outlining a procedure for Chief and Council meetings to remain in place until the First Nation adopts its own procedure. The Applicants submit that the deep political divisions that have plagued the PLFN are not novel and can be fixed: Steinhauer at para 37. The Applicants argue that the Respondent Councillors have been operating as a sub-unit and will not “back down”
unless Ordered by the Court, as seen in the interim injunction proceeding. They submit that the Court’s equitable intervention is required, as Justice Blackhawk Ordered in Key at para 206.
[94] While I acknowledge the apparent divide between the Applicants on the one hand, and the Respondent Councillors on the other, I am not convinced that this is an appropriate case for the Court to step in and “fix”
the internal conflict within the Council.
[95] Unlike Key where Justice Blackhawk found the “Procedures By-Law”
invalid because it was passed at a meeting not duly convened, the PFLN has its own Election Act and customs. While incomplete, the evidence before me does not suggest that the PLFN’s own procedures are so lacking as to warrant the Court’s interference.
[96] All councillors of PLFN are required to take an Oath of Office upon their election stating, among other things, that they uphold the principles as declared by their electors with accountability and transparency, demonstrate and practice fairness, courage and be respectful of justice, and uphold honesty and integrity as they serve to protect and promote the rights of members of PLFN.
[97] I agree with the Applicants that accountability and transparency require the Council to continue to make available, its financial records, meeting minutes and other pertinent documents accessible to all members of the Council. This should be done as a matter of course. The Council should not wait until each time someone brings an application to the Court before doing so.
[98] The Court urges the Applicants and the Respondent Councillors to continue to serve in their elected office in a manner consistent with their Oath of Office and in the best interests of the First Nation. The Court also urges the Council to work towards greater transparency and accountability by implementing good governance policies and procedures such as those set out in Steinhauer.
[99] The application for judicial review is granted with costs. The Court directs counsel to provide additional submissions on the matter of costs as set forth in the Judgment below.
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