Date: 20060413
Docket: T-1837-04
T-1532-04
Citation: 2006 FC 487
Ottawa, Ontario, this 13th
day of April, 2006
In the presence of the
Honourable Justice de Montigny
BETWEEN:
ALBERT
VOLLANT
Applicant
and
KONRAD
SIOUI
and
ROSARIO PINETTE, CÉLINE BELLEFLEUR,
GEORGES ERNEST GRÉGOIRE, MARCELLE
ST-ONGE,
GILLES JOURDAIN, RONALD FONTAINE AND
MAURICE VOLLANT,
appearing in their capacity as members or
former members of the Band Council
Respondents
REASONS FOR
JUDGMENT AND JUDGMENT
[2]
The
respondents, in turn, have filed two other applications for judicial review
with regard to the legality of two other resolutions adopted on September 13,
2004 by a differently-constituted I.T.U.M. Council, following the elections of
July 8, 2004. The two cases, under docket numbers T-1841-04 and T-1842-04,
shall be disposed of today in a distinct order; although the parties remain
essentially the same (albeit in different roles), the legal issues raised are
completely different and need to be ruled upon separately.
BACKGROUND
[3]
The
current issues reflect deep political divisions within the I.T.U.M. Council.
The considerable amount of evidence offered by the parties in the current case,
as well as in related cases, reveals a great degree of tension and mistrust
between the former and the new band chief and their respective supporters;
although the reasons for these divisions are difficult to identify and have
undoubtedly multiple causes, there is no doubt that personality conflicts
played a major role here, along with the fact that some non-members may have
been involved in the governance of the Band.
[4]
Under the Indian
Act, R.S.C. 1985, c. I-5, the I.T.U.M. Council is the decision-making body
empowered to administer the Uashat and Mak Mani-Utenam reserves. This council
is composed of a chief and nine councillors, who are all elected by the members
of the community ([translation] Electoral Code with respect to
elections in the Uashat Mak Mani-Utenam Community, s. 2.1; applicant’s
record, at page 29). A Council mandate should not exceed three years (s.
2.5).
[5]
Between
August 2001 and July 8, 2004, the date of the last elections, the I.T.U.M.
Council was represented by Chief Rosario Pinette and councillors Céline
Bellefleur, Georges-Ernest Grégoire, Marcelle St-Onge, Gilles Jourdain, Ronald
Fontaine, Maurice Vollant, Albert Vollant, Brigitte André and Réjean Ambroise.
The latter three councillors formed the opposition.
[6]
On August
3, 2001, the I.T.U.M. Council (represented by its chief) signed an employment
agreement with Konrad Sioui for the position of principal advisor. This
agreement was to start August 24, 2001 and expire on August 31, 2004. The
duties, powers and responsibilities pertaining to this position were described
as follows in the appendix to the contract:
[translation]
- Assist the chief and/or his
elected representative in the performance of his political duties at the local,
regional, national and international level;
-
Advise the
chief and/or his elected representative on any governmental policy or
regulation having an impact on the governance of the I.T.U.M;
-
Perform
the required administrative tasks on behalf of the chief and/or his elected
representative; Draft letters, documents and reports as required by the chief
and/or his elected representative; Represent, as needed, the chief and/or his
elected representative;
-
Fulfill
special mandates as required by the chief and/or his elected representative.
[7]
Due to its
relevance in helping to understand the issues raised in this case, it is
important to review section 12 of the agreement, which reads as follows:
[translation]
12. RESCISSION,
EMPLOYMENT TERMINATION AND DISCHARGE
a)
This
agreement may be rescinded at any time by the written consent of both parties.
b)
In
conformity with the preceding section, the employer agrees to the following
terms and conditions:
1)
Payment of
vacation balance
2)
Payment of
cashable sick leave balance
3)
Payment of
remaining balance under the employee’s
contract
12. RESCISSION,
EMPLOYMENT TERMINATION AND DISCHARGE (CONTINUED)
c) The
employer may rescind this agreement if the employee is found guilty of serious
offences.
d) It
is expressly agreed that repeated and/or excessive tardiness or absences may
result in termination of employment prior to the expiration date of this
agreement.
e) It
is also expressly agreed and fully understood that the consumption of alcohol
or illicit drugs on the part of the employee shall not be tolerated by the
employer.
[8]
On August
8, 2002, the I.T.U.M. Council decided to extend the contracts of the contract
workers until December 31, 2004, in order to ensure a smoother transition
following the elections. The Council resolution therefore expressly authorized
Chief Rosario Pinette to amend the contract term and remuneration (Resolution
02-03-40; applicant’s record, at page 77).
[9]
Accordingly,
on August 13, 2002, the I.T.U.M. Council (still represented by its chief)
signed a new employment contract with Mr. Sioui. Not only did this new contract
extend the term of the agreement until December 31, 2004, but it also adjusted
upward Mr. Sioui’s remuneration and annual vacation and assigned to him the additional
responsibility of overseeing the Executive Committee as its president. This new
contract also included important amendments to the rescission and discharge
provisions, including a stipulation that, in the event the employer was to
terminate the contract in the year prior to its expiration, the employee would
be entitled, not only to a compensation equal to the remaining balance of the
employer’s obligations (which was already provided for under the original
contract signed in 2001), but also to a compensation equal to one year of
salary (s. 11(f) of the contract, set out at page 100 of the applicant’s
record). It was furthermore agreed that [translation]
“in the event the
employee is unable to perform his duties due to exceptional circumstances, such
as acts of violence, intimidation, aggression or serious threats in the
workplace, the employer shall pay the employee a termination of employment sum
corresponding to the remaining balance the employee is owed under this
agreement”, with an additional year if these exceptional circumstances were to
occur during the last twelve months of the agreement (s. 11(g)).
[10]
These
provisions, which are unrelated to the question of the extension of the
contract until December 31, 2004, reflect the intense atmosphere prevailing at
the time. The Council at the time wished not only to take into account the
fears expressed by Mr. Sioui for his safety, but also to provide him with a
measure of financial protection in the event that a new chief was to be in
place following the 2004 elections.
[11]
Indeed,
the evidence adduced by the parties reflects that other amendments to Mr.
Sioui’s contract, at Mr. Sioui’s request, were already contemplated at the end
of 2002. The goal was to further ensure Mr. Sioui’s protection by providing, for
example, for the payment of a compensation amount equal to one year of salary
in the event of non renewal of his contract on its expiration date and
the deposit in the hands of a trustee, prior to the elections, of sums that he
may be owed pursuant to the terms and conditions of his contract (refer, inter
alia, to the March 31, 2003 legal advice from Lucie Gauthier in support of
Albert Vollant’s affidavit, (included as exhibit AV-14 in the applicant’s
record, at page 114). As the election date was nearing, between May 16 and
June 22, 2004, the law firm of Bertrand Poulin was retained to prepare several
draft resolutions, letters and contracts, always in view of giving additional
protection to Mr. Sioui in the event of a changing of the guard within the Band
Council (refer to exhibits AV-15 to AV-18 in support of Mr. Vollant’s
affidavit, as well as to paragraphs 48-53 of his affidavit; applicant’s record,
at pages 120, 125, 130, 170).
[12]
The last
regular meeting of the I.T.U.M. Council was held on May 25, 2004, that is, two
weeks prior to the start of the electoral campaign on June 8. Following the
July 8 elections, Chief Rosario Pinette was replaced by Elie-Jacques Jourdain.
Five councillors who supported the former chief were re-elected (Céline
Bellefleur Vollant, Georges-Ernest Grégoire, Gilles Jourdain, Ronald Fontaine,
Marcelle St-Onge), while four councillors supported the new chief (Marie-Marthe
Fontaine, Bernadette Michel, Yves Rock and the applicant, Albert Vollant).
[13]
Now,
during the electoral campaign, the I.T.U.M. Council secretary distributed to
the six councillors supportive of Chief Pinette a resolution (resolution 64) to
be signed. There is no dispute as to the fact that no meeting was called to
adopt this resolution.
[14]
The
purpose of this resolution was to pay Mr. Sioui a compensation equivalent to
six months of salary by way of an advance and to authorize him to terminate his
employment by submitting a written notice within twenty-four hours of the
publication of the final results of the elections. It should be noted that one
of the whereas clauses of this resolution read as follows: [translation] “Konrad Sioui has
already indicated that he would terminate his employment agreement in the event
the next Council were to be drastically modified in the wake of the publication
of the final results of the elections.” On the other hand, the operative part
of the resolution read as follows:
[translation]
-
INNU
TAKUAIKAN UASHAT MAK MANI-UTENAM shall pay Konrad Sioui, in addition to his
regular pay on July 7, 2004 and by way of an advance, all sums he is owed,
under his employment contract, for the July 4 2004 to December 31, 2004
period;
-
In the
event of a significant modification in the composition of the next Council,
Konrad Sioui shall have the right to terminate his employment contract by
written notice to that effect within 24 hours of the publication of the final
results of the elections;
-
In the
event Konrad Sioui decides to terminate his employment, the sums paid to him by
way of an advance shall become a compensation payment or a severance pay, in
full and final settlement of all sums owed in capital, interest and expenses
under his employment contract.
-
In the
event he chooses to maintain his contract with INNU TAKUAIKAN UASHAT MAK
MANI-UTENAM, Konrad Sioui shall, within 24 hours of submitting to the Council
his written decision to that effect, reimburse INNU TAKUAIKAN UASHAT MAK
MANI-UTENAM the compensation sums received, and shall, in addition, so notify
the Band within 24 hours of the publication of the final election results.
[15]
There is
no dispute that the councillors representing the opposition, namely the
applicant, along with Brigitte André and Réjean Ambroise, were not contacted by
the I.T.U.M. Council secretary to sign resolution 64. In addition, the evidence
shows that the councillors who signed resolution 64 were under the impression
that the compensation paid to Konrad Sioui was already included in his
employment contract. In fact, most of them were unaware that the law firm of
Bertrand Poulin had been retained several months before to draft a new
employment contract for Konrad Sioui and to prepare resolution 64. They were
also unaware of the compensation amount to be paid to Mr. Sioui.
[16]
On June
28, 2004, Konrad Sioui accepted the terms of an agreement contained in a letter
that chief Rosario Pinette had sent him on June 23, and which reiterated the
terms of resolution 64. On July 5, 2004, Mr. Sioui thus received a payment
of $58,557.63. The agreement also included the payment of a monthly housing
allowance of $600 until the end of his contract.
[17]
Following
the election of Chief Élie-Jacques Jourdain, Konrad Sioui submitted his
resignation by registered mail on July 9, 2004. The declarations that the new
chief allegedly made before, during and after the election campaign about his
intention to discharge Mr. Sioui as soon as he was elected were recited at
length before me. The respondents also allege that Mr. Sioui was subjected
to threats and intimidation and that it would have been impossible for him to
continue to live on the reserve following the elections. I need not rule on
these claims for at least two reasons. First, it is patently obvious that the
duties to be performed by Mr. Sioui for the chief required a relationship of
trust that simply did not exist with the new chief. Considering the degree of
animosity between the two men, it is very difficult to see how Chief
Élie-Jacques Jourdain could have made Konrad Sioui his political lieutenant. On
the other hand, it is settled law that a public authority body may not refrain
from exercising its powers by claiming that it had valid reasons to do so.
[18]
The
above-mentioned facts appear sufficient to me to determine the scope of the
issues raised by the adoption of resolution 64. Some additional information,
however, may be useful to fully understand the background against which was
adopted resolution 67, the legality of which is also in dispute in these
applications for judicial review.
[19]
The
evidence reveals that the I.T.U.M. Council was undergoing a severe financial
crisis in 2001. Indeed, the Department of Indian Affairs had asked the Council
to remedy to its financial affairs because its debt load was above eight
percent. Accordingly, on August 6, 2001, the Council adopted an economic recovery
plan and, by way of a resolution on August 10, 2001, created an Executive
Committee to oversee this recovery plan. The committee, presided by Konrad
Sioui, was assisted by the PriceWaterhouse Coopers firm, which was appointed
co-manager by the Council.
[20]
It is
important to note here that the resolution that created this Executive
Committee was adopted in the same manner as resolution 64, namely with the
signature of a majority of the members of the Council and without the holding
of a meeting. It appears that the Executive Committee applied the recovery plan
with success, as the deficit was brought down to 6.81% for the 2004 fiscal
year.
[21]
The
creation of the Executive Committee, however, did not go smoothly. Indeed, in
September 2004, two members of the Uashat Mak Mani-Utenam Community
submitted before a public meeting of the Council a petition signed by almost
38% of the Community electors, in which they alleged that there had been an
illegal delegation of the I.T.U.M. Council’s powers to an Executive Committee
that included non-Innus; the petition also requested the holding of a general
meeting. However, as the petition’s instigator failed to do any follow-up, the
petition fell through. The respondents, incidentally, expressed doubts
regarding the authenticity and validity of this petition.
[22]
In any
event, on June 30, 2004, the I.T.U.M. Council adopted a resolution (resolution
67) pursuant to which it would approve [translation]
“all decisions
and actions undertaken by members of the Executive Committee from its inception
on August 10, 2001 until the present, in accordance with the orientations and
guidelines of Innu Takuaikan Uashat Mak Mani-Utenam”. This resolution was
adopted in the same manner as resolution 64, that is with the signature of a
majority of the members of the Council and without discussion at a duly
convened Council meeting.
ISSUES
[24]
The
applicant and the respondents raised before this Court several issues in
relation to this case. After having reviewed the record as well as the written
and oral arguments of the parties, I came to the conclusion that I needed to
address the following points in order to dispose of these applications for
judicial review:
-
What is
the applicable standard of review?
-
Were
resolutions 64 and 67 validly adopted? More specifically, could these
resolutions be adopted without a Council meeting, by distributing them to the
members until a majority was reached? Is this the kind of procedure that
evolved as a custom within the I.T.U.M. Council?
-
Even
assuming that these customs were not validly adopted, should this Court refuse
to intervene on the grounds that the community did not suffer any damage?
ANALYSIS
Preliminary Questions
[25]
It is now
settled law that decisions taken by a band council, when it exercises, or is
deemed to exercise, its power to govern the band may be judicially reviewed by
the Federal Court. The case law is replete with decisions holding that a band
council is, for purposes of section 18 of the Federal Courts Act, “a
federal board, commission or other tribunal:” see, inter alia, Rider
v. Ear (1979), 103 D.L.R.(3d) 168 (Alta. S.C.); Canatonquin
v. Gabriel, [1980] 2 F.C. 792 (F.C.A.) (QL); Coalition To Save
Northern Flood v. Canada (1995), 102 Man R. (2d) 223 (Man.
C.A.). This is true not only when a council exercises the power it was
explicitly granted by a federal statute, but also when the contested decision
is based on a custom; this is so simply because it is the Indian Act
itself, more specifically subsection 2(1) of the Act, that recognizes the legal
character of the custom: see Francis v. Mohawk Council of
Kanesatake, [2003] 4 F.C. 1133 (QL), at paragraphs 13-17 (F.C.); Conatonquin
v. Gabriel, supra; Frank v. Bottle,
[1993] F.C.J. No. 670 (QL); Scrimbitt v. Sakimay Indian Band
Council (T.D.), [2000] 1 F.C. 513. Therefore, resolutions of a band council
are considered decisions under the Federal Courts Act and may be subject
to judicial review.
[26]
The
respondents submitted that the remedy sought against resolution 67 was simply a
roundabout way of attacking the creation of the Executive Committee, almost
three years after it came into existence. It is true that a review of the
evidence offered by both parties and of the applicant’s brief clearly shows
that the applicant and the deponents who supported his application never
accepted the creation of the Executive Committee and questioned the legitimacy
of this body as well as the way it makes decisions. But I do not think that
this is sufficient to call into question what is really at stake in this
litigation.
[27]
It rather
appears to me that the applicant wanted to establish that some of the decisions
made by the Executive Committee may be illegal and that it is therefore
necessary to question the legality of resolution 67 that would result in the
retroactive validation of all the decisions made by the Executive Committee. If
resolution 67 were to be declared null and void, the decisions made by the
Executive Committee would not be necessarily invalidated. As the applicant
submitted, invalidating resolution 67 would only entail challenging the
Executive Committee’s decisions one by one.
[28]
In any
case, the application for judicial review of resolution 67 does not appear to
me tardy, inasmuch as the thirty-day time limit provided for by section 18.1(2)
applies only to judicial or quasi‑judicial decisions emanating from
administrative tribunals under federal jurisdiction. Although the French
version refers to an “office fédéral,” the English version is much more explicit
and provides that the thirty-day time limit applies to decisions or orders of a
“federal board, commission or other tribunal:” see Federal Courts Practice,
by B. Saunders, M. Kinnear, D.J. Rennie and G. Garton, Thomson Carswell, 2006,
at page 110.
The Standard of Review
[29]
The powers
granted to band councils under the Indian Act more closely resemble the
powers of municipal councils than those possessed by the board of directors of
a business corporation: Canadian Pacific Ltd. v. Matsqui Indian Band (C.A.), [2000] 1 F.C. 325 (QL); Francis v.
Mohawk Council of Kanesatake, [2003] 4 F.C. 1133 (QL); Leonard v.
Gottfriedson (1980), 21 B.C.L.R. 326 (S.C. B.C.); Isolation Sept-Iles v.
La Bande des Montagnais de Sept-Iles et Maliotenam (1989), 2 C.N.L.R. 49
(Sup. Ct .Q.). In this perspective, it might appear that the determination of
the explicit or implicit limits of the discretionary power possessed by a band
council is judicially reviewable according to the ultra vires doctrine: Leonard
v. Gottfriedson, supra.
[30]
This
classic approach seems, however, to have given way to the pragmatic and
functional approach, which a majority of the Supreme Court now seems to favour
in determining the standard of review applicable to decisions made by
administrative bodies as well as those adopted by local authorities. Such is
the result of the evolution of case law, which is revealed by the following
judgments of the Supreme Court of Canada: Shell Canada Products Ltd. v.
Vancouver (City), [1994] 1 S.C.R. 231; Nanaimo (City) v. Rascal Trucking
Ltd., [2000] 1 S.C.R. 342; Chamberlain v. Surrey School District No. 36,
[2002] 4 S.C.R. 710. In her book entitled Vers la primauté de l’approche
pragmatique et fonctionnelle (Éd. Yvon Blais, Cowansville, 2003, at
pages 107-125), Professor Suzanne Comtois did a very thorough and clear
analysis of this evolution.
[31]
In this
case, I do not think that the pragmatic and functional approach dictates a
standard of review that is different from the one pertaining to the ultra
vires doctrine. Firstly, I note that the Indian Act does not
immunize decisions made by a band council through a privative clause. Secondly,
I do not think that the Band Council was in a better position than this Court
to determine if it was authorized by the Indian Act to act as it did. It
is true that the I.T.U.M. Council was required to understand the situation at
hand in order to make a decision that would be in the Band’s best interest, and
the Court should fully defer to the Council on this level. However, the issue
before us is not whether the Council was right in acting the way it did, but
whether it was empowered to do so. Its expertise in this regard is certainly
not superior to that of the Court. The third factor in this pragmatic and
functional analysis, namely the legislator’s objective in granting the
governance of the Band to the Council, is of particular importance. Parliament
granted a high level of autonomy to the authority elected by the band members
in administering their affairs, and this objective should be fully respected by
the courts. However, as with municipal councils, it remains that the decisions
must be made within the parameters set by the law; this will ensure that the
will of the members is respected and that their best interests are taken into
consideration. Finally, the issue whether the Council had the power to follow
the chosen procedure in adopting resolutions 64 and 67 is undeniably a legal
issue. On the basis of these four factors, I have come to the conclusion that
these decisions should be reviewed according to the standard of the
correctness. It follows that I am not called upon to exercise great restraint.
Were resolutions 64 and 67 validly
adopted?
[32]
The
applicant emphasized the duty of the I.T.U.M. Council to follow paragraph 2(3)(b)
of the Indian Act in exercising the powers it is granted under this law.
The provision reads as follows:
|
(3) Unless the context
otherwise requires or this Act otherwise provides,
|
(3) Sauf indication
contraire du contexte ou disposition expresse de la présente loi :
|
|
(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
|
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;
|
|
(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.
|
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
|
[33]
Now, it
was alleged that two violations of that provision occurred when resolutions 64
and 67 were adopted because all the councillors were not convened and secondly,
because no meeting was held. Such violations are said to invalidate the
resolutions. No argument of custom may be cited to alter the requirements
imposed by this provision of the Indian Act. And, even assuming that the
respondents were to claim the existence of a custom overriding the legislation,
it is alleged that no such custom has been proven because the conditions
recognized by the case law requirements have not been met. Finally, the
applicant submitted that the custom invoked by the respondents was inapplicable
in this case, as the three underlying conditions for its implementation have
not been met.
[35]
As to this
point, it appears to me that the applicant should prevail. Paragraph 2(3)b)
is drafted in mandatory terms; the legislator’s objective was clearly to create
a rule that could not be dispensed with; see, regarding this type of statutory
language, R. Sullivan, Sullivan and Driedger on the Construction of Statutes,
4th
ed.,
Butterworths, at pages 71-72. And this was exactly what the Supreme Court
of British Columbia held in Leonard and the Kamloops Indian Band et al. v.
Gottfriedson, [1982] 1 C.N.L.R. 60; [1980] B.C.J. No. 551 (QL), at
paragraphs 43 to 45:
I have been directed to no
statutory or similar authority authorizing the exercise of power by the band
council by individual consent to a resolution in writing.
As is well known in the field
of company law, for example, it has been fairly common practice to make
provision in the articles of a company for the exercise by directors of their
powers by written resolution signed by all the directors, the same being as
effective as if passed at a meeting of directors duly called and properly
constituted. (…)
It appears to me also that the
position under the Indian Act is analogous to the exercise of powers of
a municipal corporation. Such powers are, speaking generally, to be exercised
in close conformity with the provisions of the incorporating statute. The
rationale for such limitations with respect to the exercise of powers is that
they are being exercised in the interests of the welfare of the inhabitants who
are thus to be protected . . .
See also: MacMillan v.
Augustine, [2004] N.B.J. No. 161
(N.B. Q.B.); Woodward J., Native
Law Thomson Carswell, 2002, at page 182.
[36]
It seems
to me that there are good reasons why decisions that affect the entire band may
only be made in the course of a public meeting duly convened with the
participation of all the elected members. In a democracy, ideas expressed
within the framework of a forum where all viewpoints are welcome provide the
best assurance that everyone’s rights are respected and that the interests of
the community are protected. This objective may be at times set aside in the
interest of expeditiousness and efficiency in the business world, but this
should never be the case when the welfare of members of a public body is at
stake. The risks are too great to allow the slightest deviation from this rule.
[37]
Citing the
preliminary statement of subsection 2(3): “Unless the context otherwise
requires or this Act otherwise provides”, the respondents argued that the
context could allow a deviation from the rule under paragraph 2(3)(b).
However, I have great difficulty in interpreting those words as referring to a
custom and even greater difficulty in reading therein, on the basis of this custom,
an implicit authorization to deviate from the clear language of the
above-stated provision. It appears to me that, if it had wanted to authorize
the application of a custom to set aside the provisions of paragraph 2(3)(b),
Parliament would have said so much more directly, as was the case when it
allowed the election of a band council through custom rather than pursuant to
the requirements of section 74.
[38]
In any
event, the respondents have failed to convince me that there actually exists a
custom authorizing the I.T.U.M. Council to adopt a resolution by distributing
it to its members until it has been approved by a majority of them. And it is
settled law that the party who relies on a custom has the burden of proving its
existence: McArthur v. Canada (Department of Indian Affairs
and Northern Development) (1992), 91 D.L.R. (4th) 666 (Sask. Q.B.); Francis
v. Mohawk Council of Kanesatake, supra.
[39]
In order
to prove the existence of a custom, two elements must be established: the first
one, an objective one, requires that there be a certain number of occurrences
(which, under some circumstances, may be replaced by an isolated act such as
the adoption of a general rule or of an electoral code). An accumulation of
occurrences is, however, insufficient; a subjective element must be added
thereto: compliance of the persons affected by this practice. After a thorough
review of the relevant case law, Mr. Justice Martineau gave a good summary of
the applicable rules at paragraph 36 of Francis v. Mohawk
Council of Kanesatake, supra:
For a rule to become custom, the
practice pertaining to a particular issue or situation contemplated by that
rule must be firmly established, generalized and followed consistently and
conscientiously by a majority of the community, thus evidencing a “broad
consensus” as to its applicability. This would exclude sporadic behaviours
which may tentatively arise to remedy certain exceptional difficulties of
implementation at a particular moment in time as well as other practices which
are clearly understood within the community as being followed on a trial basis.
If present, such a “broad consensus” will evidence the will of the community at
a given time not to consider the adopted electoral code as having an exhaustive
and exclusive character. Its effect will be to exclude from the equation an
insignificant number of band members who persistently objected to the adoption
of a particular rule governing band elections as a customary one.
[40]
In this
instance, the respondents’ evidence does not allow me to rule with certainty as
to the existence of the custom relied upon. It seems that a certain number of
resolutions were, indeed, adopted in the past by distributing them amongst the
members of the I.T.U.M. Council; it would even appear that the applicant
himself signed some of them. However, in addition to the fact that this type of
procedure was not often followed (given the exceptional nature thereof, that is
not surprising), nothing in the evidence adduced leads me to believe that this
so-called custom was generally accepted by the community and a broad consensus
of the Band members was present.
[41]
Moreover,
were I even willing to accept the existence of such a custom, the requirements
governing its application do not appear to me to have been met. Firstly, the
evidence reveals that the Secretary of the I.T.U.M Council failed to check
whether dissident councillors Albert Vollant and Brigitte André were available
to attend a Council meeting. Furthermore, I am somewhat suspicious of the
urgency to act in the midst of an electoral campaign, considering that the
issue of the compensation to be paid to Konrad Sioui in the event of a changing
of the guard following the July 2004 elections had been debated since at
least March 2003. This is an issue that could have undoubtedly been debated
during the last regular meeting of the I.T.U.M. Council; the decision to
proceed by way of a “flying resolution” instead was perhaps made in order to
divert attention from the planned contractual amendments and to avoid paying
the political price for it, as the applicant claims.
[42]
Finally, I
cannot help but wonder about the extent of the support resolutions 64 and 67
really received, as the evidence reveals that the Council members who signed
them did not seem to fully understand the meaning and actual scope of these
resolutions. The cross-examination of the signatory members of these
resolutions, indeed, shows that there was considerable confusion relating to
these resolutions: some believed that the compensation to Mr. Sioui that was
voted on within the framework of resolution 64 was already provided for in his
employment contract, and that resolution 67 was nothing more, in fact, than an
expression of gratitude to the Executive Committee for the work it had done
during its mandate.
[43]
This
ambiguous situation reveals the inherent dangers of this manner of adopting
resolutions. Carried to its limits, such a procedure could justify the worst
excesses: it could, indeed, be tempting to have controversial decisions adopted
in great secrecy, by controlling the information disseminated and by contacting
only the members assumed to be favourable to the resolution. Thus, by not
allowing elected representatives to speak and debate on issues that affect all
members, the very basis of democracy would be imperilled.
Should the Court intervene?
[44]
The
respondents attempted to show that rescinding resolutions 64 and 67 would have
no legal effect because they were not necessary to start with. More
specifically, with respect to resolution 64, they claimed that the Chief
had the authority to modify Mr. Sioui’s employment conditions and that this was
solely an administrative procedure that did not require the Council’s
intervention. I disagree. As with municipalities and schools, the formal
procedures set out in the Indian Act are a sine qua non condition
of a contract’s validity, and the notion of apparent authority cannot be
applied herein as where a governmental authority is involved. As
Madam Justice Tourigny wrote in Isolation Sept-Iles Inc. v. Montagnais
de Sept-Iles et Maliotenan Indian Band, [1989] 2 C.N.L.R. 49 (Sup. Ct
Que.), at page 57:
Moreover, courts have
unanimously held that non‑compliance with formal requirements in
municipal and school cases has adverse consequences because they are powers
which the Assembly has delegated for the benefit and in the interest of
citizens, and such delegated powers can only be exercised within the strict
framework the law imposes on them.
All Indian band councils
derive their powers from the same source. Those powers, and the terms and
conditions within which they must be exercised, are delegated by the Indian
Act.
Subsection 2(3) of the Act
clearly requires the consent of a majority of councillors of a band present at
a duly convened meeting of the council members, failing which “a power
conferred on the council of a band shall be deemed not to be exercised.” [translation]
In addition, the
authorization by the Minister of Indian Affairs and Northern Development,
provided for under sections 64 and 66 for the expenditure of moneys is also a
required formality.
Also see : Leonard and
the Kamloops Indian Band et al. v. Gottfriedson, supra;
Conseil de bande des Abénakis de Wôlinak v. Bernard, [1999] 2
C.N.L.R. 52 (F.C.); Heron Seismic Services Ltd. v. Muscowpetung
Indian Band, [1991] 2 C.N.L.R. 52 (Sask. Q.B.); Gilbert v. Abbey,
[1992] 4 C.N.L.R. 21 (S.C. B.C.); Raine v. Bande Louis
Bull (conseil), [2000] F.C.J. no 1372 (QL).
[45]
The hiring
of a special consultant does not appear to me to be part of the Band’s day-to-day
administrative activities: the terms and conditions of the contract, the nature
of the duties described and the level of remuneration do not evince a standard
type contract. Moreover, the amendments to Mr. Sioui’s contract provided in
resolution 64 cannot be said to have been authorized by the August 8, 2002
resolution which authorized the Chief to extend the term of all the contract
workers’ employment contracts until December 31, 2004 in order to ensure a
smooth transition after the elections. The amendment to Mr. Sioui’s contract,
which provides for the payment to him of a $58,557.63 compensation in the event
of his resignation, goes well beyond the letter and spirit of this resolution.
[46]
Claiming
that rescinding resolution 67 would have no impact, the respondents also asked
the Court to dismiss the application for judicial review in the T-1532-04 case.
Indeed, they claim that, if the applicant wishes to challenge the decisions of
the Executive Committee, he should challenge the decisions and not the
resolution that ratified these decisions.
[47]
It is true
that rescinding resolution 67 would not invalidate the decisions made by the
Executive Committee, and this is not, in fact, what the applicant is seeking.
While he still objects to the creation of this Committee, the issue before me
is not whether the Committee was properly constituted. The sole impact of
rescinding resolution 67 would be to make it possible to challenge a decision
made by the Committee on the ground that it acted outside the purview of the
powers granted to it by the I.T.U.M. Council and thus did not give the
respondents the possibility of pleading an ex post facto ratification of
this decision. For this reason, I therefore disagree with the respondents that
the rescission of resolution 67 would have no legal impact.
[48]
In the
alternative, the respondents asked the Court to exercise its discretion
pursuant to subsection 18.1(5) of the Federal Courts Act and dismiss the
application for judicial review on the ground that the technical irregularities
surrounding the adoption of resolutions 64 and 67 caused no substantial wrong
to the Band members. They asserted, for instance, that the new Chief’s
animosity towards Mr. Sioui and his electoral promise that, if elected, he
would discharge him clearly revealed what would have occurred if Mr. Sioui had
not resigned: he would have undoubtedly been discharged, which would have
entailed even more expenses for the I.T.U.M. Council. Indeed, the evidence
reveals that, on the day following his election, the new Chief told a
journalist that Mr. Sioui “will have to find another job”. However, pursuant to the terms and
conditions of the contract between Mr. Sioui and the Council, it was agreed
that Mr. Sioui would receive a severance pay corresponding to the remaining
balance of the employer’s obligations as well as an additional year of salary
in the event his contract were to be rescinded by the employer within its last
twelve months (see paragraph 9, supra).
[49]
The
respondents also referred to paragraph 11(g) of his employment contract, which
provided for the same severance pay in the event Mr. Sioui became “unable to
perform his duties due to exceptional circumstances, such as acts of violence,
intimidation, aggression or serious threats in the workplace”. Recalling the
atmosphere of violence that had prevailed during the previous elections and the
aggressions that are said to have been perpetrated against Mr. Sioui in the
past, the respondents claimed that Mr. Sioui could have also based his
claim on this clause of the contract.
[50]
The
respondents allege, on this basis, that the purpose of resolution 64 was simply
to ensure that Mr. Sioui would receive the money he was owed in the event of a
change in leadership after the election of a new Council, and was also meant to
reduce by one year of salary the compensation he would have otherwise been
entitled to. Although apparently persuasive, this argument does not persuade
me.
[51]
At the
outset, it must be said that, by this argument, the respondents are just
speculating. It is quite possible that, without the compensation he was
entitled to pursuant to resolution 64, Mr. Sioui would not have resigned. It is
also possible that the new Chief would not have let him remain in his position
as special consultant. Finally, it is entirely conceivable that Mr. Sioui felt
physically threatened following the elections. That being said, one cannot
conclude with certainty that he could have invoked the clause in his contract
providing for severance pay in the event of a rescission of his contract or of
his inability to perform his duties.
[52]
Furthermore,
whatever reasons, albeit legitimate, prompted the Council to adopt
resolution 64 did not grant it a licence to depart from the clear language
of the Indian Act, particularly of paragraph 2(3)(b) of the Act.
In order to ensure that the decisions of a band council are made in the best
interest of the community members, the legislator set out a mandatory
decision-making process. It would be very risky to authorize a council to
ignore these rules every time it feels it is making a desirable decision.
[53]
Finally,
all the arguments raised by the respondents to convince me of the merits of
resolution 64 were already known at the time of, and even prior to, the last
public meeting of the I.T.U.M. Council. If they felt it was in the Band’s best
interest to adopt this resolution, they should have submitted it and opened it
up for discussion at a duly convened meeting.
[54]
As for
resolution 67, it may well be that setting it aside would have no immediate
impact. I am not prepared, however, to say that the application for judicial
review is futile and has no practical effect. If this were the case, it seems
to me that it would not have been adopted as it was in an extraordinary manner
in the midst of the political campaign. The newly elected officials will, in
any event, have the task of determining if some of the Executive Committee’s
acts may be challenged and whether it is worthwhile to do so in light of the
advantages and disadvantages of lawsuits before a Court of law.
[55]
For all
the foregoing reasons, I therefore rule that both applications for judicial
review in cases T-1532-04 and T-1837-04 should be allowed and that,
consequently, resolutions 64 and 67 should be set aside.
JUDGMENT
THE COURT ORDERS that:
Both applications for judicial review in cases T-1532-04 and
T-1837-04 be allowed, and that, accordingly, resolutions 64 and 67 be set
aside.
“Yves
de Montigny”
Certified
true translation
François
Brunet, LLB, BCL
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