Date: 19981016
Docket: T-764-98
BETWEEN:
PERCY AGAWA, ALAN BOYER, ANDY CLARKE, LIZETTE COLLINS,
ADELENE V. CORBIERE, LLOYD HILL, RICHELE ROBINSON,
IRENE STEVENS, VICTORIA SYRETTE and
DONALD WABOOSE
Applicants
- and -
ROLAND HEWSON, CAROL NADJIWON, JAMES ROACH,
VERNON SYRETTE, ANN TEGOSH and KEVIN TEGOSH
in their representative capcity as councillors
of the Batchwana Band and NOEL SYRETTE
in his illegal capacity as councillor for the Batchewana Band
Respondents
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the motion passed by the Batchewana Band Council (the "Council") allowing Mr. Noel Syrette to rescind his letter of resignation.
FACTS
[2] Mr. Syrette and the other councillors were elected to office on 8 December 1996.
[3] On or about 12 January 1998, Mr. Syrette submitted an undated letter to the Council, which reads as follows:1
| Please accept the following letter as an official document outlining my resignation and reasons thereof, from my position as Counselor for the Batchewana First Nation. Up until the last term the unity, respect of opinions, individuality of others, & the best interest of the community has always been, in my eyes, very apparent amongst counsel. To be able to enter a room and debate over what can sometimes be a challenging agenda, and yet still be able to end with humor intact and sense of accomplishment knowing the agenda was successfully met is an achievement in itself that has not been met over the past term. Doing what is in the best interest for the membership as a whole, instead of a few select individuals is becoming a task instead of a given, a mandate that has fallen to the side. |
|
| One of the main reasons for my resignations [sic] is the constant harassment and focus from selected band members, (and now the chief & counsel member) in regards to the conflict of interest concerning my position as a police officer. Also, the constant involvement of the media, and the slanderous involvement of my name, has made my character and reputation questionable which my profession does not allow. |
|
| Furthermore, the resignation is a must for my own mental health and well being. I have lost my drive and determination, in this past term, to even bring myself to attend meetings knowing the tension, lack of focus, and inability to make decisions for the betterment of the community as whole. |
|
| In closing, I hope that those members of counsel, who are not in there for selfish reasons, stand strong in their belief and dedication to do what is right. |
|
[4] Following the submission of this letter, Mr. Syrette did not attend the next three regularly scheduled Council meetings, on 14 January, 4 February and 4 March 1998. During this period, Council ceased paying Mr. Syrette the honoraria paid to councillors.
[5] On 4 March 1998, Chief Angela Neveau stated at the regular Council meeting, that as a result of the letter of resignation, she considered the office formerly held by him to be vacant.
[6] On 9 March 1998, the Council passed a resolution, which reads:2
| That Batchewana First Nation Council hereby acknowledge Councillor Noel Syrette"s decision to rescind his undated letter of resignation submitted January 19, 1998 Council Work Meeting. At the same time, Council wishes to acknowledge the reasons for Councillor N. Syrette"s submission of the original letter as requiring a mental health break from his Council duties, and hereby acknowledge his absence from all meetings held January 19, 1998 through March 4, 1998. |
|
ISSUE
| Was Council"s motion to reinstate Mr. Syrette, after he had submitted his resignation, ultra vires ? |
[7] Subparagraph 78(2)(a)(ii) of the Indian Act3 reads:
| 78(2) The office of Chief or councillor of a band becomes vacant when
(a) the person who holds that office
...
| (ii) dies or resigns his office, or ... |
|
|
78 (2) Le poste de chef ou de conseiller d'une bande devient vacant dans les cas suivants_:
a) le titulaire, selon le cas_:
...
| (ii) meurt ou démissionne, ... |
|
[8] Neither the Act nor the Indian Band Council Procedure Regulations4 specifies any procedural requirement with respect to the resignation of a band Councillor.
[9] In Huron-Wendat,5 Dubé J. was asked to determine the validity of oral resignations submitted by Band Councillors. The applicants submitted that the resignation must be in writing to be effective, while the respondents argued that a resignation tendered in any fit manner would suffice. Dubé J. followed the decision in Pontiac6, which stated that where no procedure for resignation is provided in the Code, then we must turn to the common law.
[10] In Pontiac, there is a discussion of whether or not the resignation must be accepted in order to be valid:
| Where neither the charter nor by-laws prescribe any particular mode in which the members may resign their rights of membership, and their resignation be accepted, such resignation and acceptance may be implied from the acts of the parties... To complete a resignation, it is necessary that the corporation manifest their acceptance of the offer to resign, which may be done by an entry in the public books.7 (My emphasis) |
|
[11] Dubé J. then found that an oral resignation was in a "fit manner" when he stated: "[t]he Council had clearly accepted the resignations and this fact was entered in the minutes." He concluded:
| The two defendants in the case at bar tendered their resignations in a fit manner, the resignations were duly accepted by the Council and the minutes of the relevant meetings attest that these resignations were made.8 |
|
In this conclusion, as in Pontiac, acceptance is merely a procedural
requirement.
[12] In my opinion, the case law does not give Council the discretion to accept or reject a resignation. To allow such a proposition would mean that no Band Councillor could ever resign without the permission of Council. This cannot be the case. It would extend the acceptance beyond a procedural requirement and create discretionary powers not specified in the Act.
[13] In the case of Sault v. Mississaugas of The New Credit Band Council,9 Strayer J. considered the authority of a Band Council to suspend a Councillor for conduct a majority of Council found unacceptable. He determined that the Band Council did not have the jurisdiction to expel a Councillor and to disqualify him from serving as a member of Council. He also reaffirmed the principle that a Band Council is a creature of statute and its powers are limited to those found in that statute.
| It has been authoritatively held that a band council such as this "is a creature of the Indian Act", and this implies that such powers as such a council has derive from that statute ... This basis for band council powers renders inappropriate most analogies with the inherent powers of sovereign bodies such as Parliament and legislatures.10 |
|
[14] Later in the same judgment, Strayer J. outlined the language of section 78 of the Act and stated that the jurisdiction of the Council was limited by that section:
| In my view Parliament intended to exclude all such criteria other than those mentioned when it enacted in s. 78(1) that councillors were to hold office for two years and that this was to be subject only to the other provisions of s. 78. To uphold the action taken by the defendants here would be to authorize the majority on band councils to suppress dissent by removing from council at any time in their statutory term of office those members who offend the majority.11 |
|
[15] In my opinion, the corollary of the Sault decision, where Council does not have the authority to declare a Councillor"s position vacant for conduct it finds unacceptable, is that neither does Council have the authority to force a Councillor to stay in his or her position, once he or she has tendered a resignation. To find otherwise would be tantamount to forcing someone to perform a duty or service against his or her will, something I am very reluctant to accept.
[16] Further,_ it may result in potential delays, such as in the present case, between the submission of the resignation and Council"s approval, during which time the Band would be without full representation. Taken to the extreme, it would allow Council to defer their decision indefinitely, thereby denying the electorate the chance to fill the vacancy.
[17] In summary, "acceptance" in this context must mean that Council is in receipt of the resignation. In other words, Mr. Syrette"s resignation did not become effective until Council acknowledged it. As soon as Council acknowledged receipt of his resignation, which it did when it placed the letter on the January 19, 1998 agenda,12 Mr. Syrette"s seat on Council became vacant.
[18] In any event, this issue (i.e. the acceptance by Council of Mr. Syrette"s resignation) is moot because, I believe Mr. Syrette abandoned his position.
[19] It is common ground between the parties that Mr. Syrette did not perform his duties as a Councillor between January 12, 1998 and March 9, 1998.
[20] In Cameron v. Boyle,13 McWilliam J. cites, with approval, Robert"s Rules of Order at p. 291, on the point of abandonment.
| The duties of a position must not be abandoned until a resignation has been accepted and becomes effective, or at least until there has been reasonable opportunity for it to be accepted.14 |
|
[21] To determine what constitutes a "reasonable opportunity", reference can be made to subparagraph 78(2)(b)(ii) of the Act , which provides as follows:
| 78(2) The office of chief or councillor of a band becomes vacant when
(b) the Minister declares that in his opinion the person who holds that office
| (ii) has been absent from three consecutive meetings of the council without being authorized to do so ... |
|
|
78 (2) Le poste de chef ou de conseiller d'une bande devient vacant dans les cas suivants_:
...
b) le ministre déclare qu'à son avis le titulaire, selon le cas_:
...
| (ii) a, sans autorisation, manqué les réunions du conseil trois fois consécutives, ... |
|
[22] The fact that the Minister may declare a position vacant after the councillor has missed three meetings suggests that three meetings would constitute a "reasonable opportunity" for Council to accept the resignation. In this case Mr. Syrette missed three meetings.
[23] Finally, Council acquiesced in Mr. Syrette"s decision to resign. Firstly, Council stopped paying Mr. Syrette the honoraria paid to Councillors for their attendance at and participation in meetings. Secondly, on March 9, 1998, Mr. Syrette attended a special meeting of Council, not as a Councillor, but as a "guest," which indicates Council"s acknowledgement of Mr. Syrette"s decision to cease being a Councillor. Thirdly, Mr. Syrette was permitted to miss three consecutive meetings without reprimand or comment by Council.
[24] Based on these facts, Council"s conduct in stopping his payments, inviting him to a Council meeting as a guest, and allowing him to miss three meetings following his resignation, strongly suggests that Council had accepted his decision, or at the very least that Council acquiesced in Mr. Syrette"s decision to resign.
CONCLUSION
[25] Mr. Syrette"s resignation was effective 19 January 1998 and Council"s motion to allow Mr. Syrette to rescind his letter of resignation is ultra vires.
[26] Mr. Syrette"s seat is declared vacant from that date.
[27] Payment of honoraria made to Mr. Syrette in his capacity as band councillor from that date were improperly made and should be reimbursed.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
October 16, 1998.
__________________
1 Applicant"s Record, Exhibit "A" p. 10.
2 Applicant"s Record, Exhibit "C" p. 23.
3 R.S.C. 1985, c. I-5.
4 C.R.C. 1978, c. 950.
5 Huron-Wendat (Council) v. Laveau [1987] 3 F.C. 647 (T.D.).
6 Corporation of County of Pontiac v. Pontiac Pacific Junction Railway Co., (1988), 11 L.N. 370 (S.C. Aylmer (Dist. Of Ottawa)).
7 Ibid. at 372.
8 Supra note 5 at 653.
9 (1989), 25 F.T.R. 241 (T.D.).
10 Ibid. at 245.
11 Ibid. at 246-47.
12 Memo of L. Bellerose, Band Administrator to Chief & Council (9 March 1998).
13 (15 April 1994), DRS 94-09918 (Ont. Gen.Div.).
14 Ibid. at para. 32.
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