Date: 20050810
Docket: T-1313-05
Citation: 2005
FC 1097
Toronto, Ontario, August 10, 2005
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
EUGENE ESQUEGA, BRIAN KING, GWENDOLINE
KING, HUGH KING SR., RITA KING, WAYNE KING, LAWRENCE SHONIAS AND OWEN BARRY
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1]
The applicants
are the nine councillors of the Gull Bay First Nation Council (the Council) who
were elected at an election held on November 8, 2004 in accordance with the Indian
Band Election Regulations (the Regulations) but whose election was
set aside by the Governor-in-Council by Order-in-Council P.C. 2005-1289 dated
June 28, 2005 (the Order-in-Council) made pursuant to paragraph 79(c) of the Indian
Act (the Act) on the grounds that in accordance with paragraph 14(c) of the
Regulations the Minister of Indian Affairs and Northern Development (the
Minister) has reported that three persons nominated as candidates for election
to the office of councillor were ineligible to be candidates as they did not
reside on the reserve at the time of their nomination as required by subsection
75(1) of the Act.
[2]
The
applicants move this Court for:
(a)
an interim
injunction prohibiting the holding of the Gull Bay First Nation (the First
Nation) by-election for Council scheduled for August 12, 2005 pending final
determination of the Applicants’ application for judicial review of the Order-in-Council;
(b)
an order
reinstating the nine (9) councillors pending final determination of the
Applicants’ judicial review of the Order-in-Council;
(c)
In the
alternative, an Order reinstating the six councillors who were not found to be
ineligible and who may form a quorum of the Council for continuing the work of
Council pending final determination of the Applicants’ judicial review
application of the Order-in-Council.
[3]
The
relevant provisions of the Act are subsection 75(1) and section 79 which read:
75(1) No
person other than an elector who resides in an electoral section may be
nominated for the office of councillor to represent that section on the council
of the band.
…
79. The
Governor in Council may set aside the election of a chief or councillor of a
band on the report of the Minister that he is satisfied that
(a) there was
corrupt practice in connection with the election;
(b) there was
a contravention of this Act that might have affected the result of the
election, or
(c) a person
nominated to be a candidate in the election was ineligible to be a candidate.
[4]
The
relevant provisions of the Regulations are sections 12 to 14 which read
Election
Appeals
12.(1) Within
45 days after an election, a canadidate or elector who believes that
(a) there was
corrupt practice in connection with the election,
(b) there was
a violation of the Act or these Regulations that might have affected the result
of the election, or
(c) a person
nominated to be a candiate in the election was ineligible to be a candidate,
May lodge an
appeal by forwarding by registered mail to the Assistant Deputy Minister
particulars thereof duly verified by affidavit.
(2) Where an
appeal is lodged under subsection (1), the Assistant Deputy Minister shall
forward, by registered mail, a copy of the appeal and all supporting documents
to the electoral officer and to each candidate in the electoral section in
respect of which the appeal was lodged.
(3) Any
candidate may, within 14 days of the receipt of the copy of the appeal, forward
to the Assistant Deputy Minister by registered mail a written answer to the
particulars set out in the appeal together with any supporting documents
relating thereto duly verified by affidavit.
(4) All
particulars and documents filed in accordance with the provisions of this
section shall constitute and form the record.
13.(1) The
Minister may, if the material that has been filed is not adequate for deciding
the validity of the election complained of, conduct such further investigation
into the matter as he deems necessary, in such manner as he deems expedient.
(2) Such
investigation may be held by the Minister or by any person designated by the
Minister for the purpose.
(3) Where the
Minister designates a person to be hold such an investigation, that person
shall submit a detailed report of the investigation to the Minister for his
consideration.
14.Where it appears
that
(a) there was
corrupt practice in connection with an election,
(b) there was
a violation of the Act or these Regulations that might have affected the result
of an election, or
(c) a person
nominated to be a candidate in an election was ineligible to be a candidate,
The Minister
shall report to the Governor in Council accordingly.
FACTS
[5]
Three
members of the First Nation, Claudette Marie Penagin, Cecilia Penagin and Marie
Poile appealed the election on the grounds some successful candidates were not
eligible as they did not reside on the reserve at the time of nomination, on
voting regulations breaches and on the actions of one of the scrutineers.
These appeals were verified by affidavits.
[6]
Those
successful candidates challenged in the three appeals on grounds of
ineligibility were Gwendoline King, Brian King, Rita King, Wayne King, Hugh
King, Eugene Esquega and Alec King. These individuals responded to the appeals
by filing affidavits and documents in support of their residence. These response
affidavits are dated either the 24 or 25 of January, 2005 and February 4, 2005
in respect of Hugh King.
[7]
On
February 25, 2005, the Director, Band Governance, at Indian Affairs and
Northern Development (IANC) requested the IANC’s Regional Director – Ontario
Region to retain the services of an independent third party to investigate the
residency of the challenged candidates and confirm whether or not the
scrutineer handled the ballot papers after the close of the polls on election
day. The investigator selected was I.L. Dyck.
[8]
Mr. Dyck carried
out his investigation by conducting interviews and taking photographs. He
prepared an investigator’s report dated April 26, 2005. He found:
(a)“Rita King
does not live in the First Nation’s community and has not been ordinary
resident there since before the time she was nominated for Councillor.”
(b)“Brian
King may, on occasion, stay in this house on the reserve when it is convenient
to him but it is not his place of ordinary residence. When he looks after the
business at Kings Landing during the summer months he stays in one of the
cottages at the Landing. This is not on reserve.”
(c)“Gwendoline
King was not ordinarily resident at the time she was nominated as Councillor
nor is she resident in the Gull Bay First Nation now.”
(d)“Eugene
Esquega appears to meet the interpretation of “ordinary resident”contained in
Section 3 on the Indian Band Election Regulations.”
(e)“Wayne
King resides in the Gull Bay First Nation Reserve most of the time and he uses
it as his home base. He goes to Thunder Bay on Band business and to
visit his girl friend (common-law ) at least one day a week but the benefit of
the doubts goes in his favour.”
(f) Ronald
King and Alec King are father and son. The Investigator concluded they live at
the reserve and they have a unit in Thunder Bay “which is used by the
family whenever they have to go to Thunder Bay for shopping, business
and relaxation but it is not their ordinary residence.”
[9]
In terms
of the scrutineer he wrote:
The degree of
handling of ballot papers by Hilda King is inconclusive. A further
investigation which could locate her and give me the opportunity to interview
her could be time consuming and not cost effective at this time unless I am
authorized to do so.
[10]
Officials
at INAC considered the investigator’s report and, in turn, prepared a report
dated May 30, 2000 to the Minister.
[11]
The INAC Report
to the Minister set out the investigation report’s findings on eligibility to
be nominated as candidates for councillor. The INAC report concluded, as had
the Investigator, to the ineligibility of Rita King, Brian King and Gwendoline
King.
[12]
The INAC Report
set out two possible resolutions:
1. That the
Minister recommend that the election of all nine councillors be set aside.
2. That the
Minster recommend that the election of only the three councillors who were
ineligible be set aside.
[13]
The INAC Report
provided the following rationale for setting aside the election of all nine
councillors:
This
recommendation is supported by the fact that the election for all councillors
was inherently flawed. Had the votes cast for the three ineligible persons
been cast for other candidates, the result of the election could have been
significantly different. Should the election of all councillors be set aside,
the community would not have a functioning leadership until such time as an
accelerated election for these positions could be held (approximately 40
days). It is not uncommon for a First Nation to find itself without elected
leadership as a result of an election being set aside by the Governor in
Council. The provisions for an accelerated election contained in the IBER were
designed to address this very situation. Essential services would continue to
be delivered to community members by the third party manager.
[14]
The INAC Report
contained the following rationale for the second solution:
This solution would
allow the band council to maintain a quorum and continue to govern. It would
then be left to the council to decide whether a by-election is held to fill the
vacant positions. However, this option presupposes that the councillors who
remain in office would have been elected anyway had the ineligible candidates
not appeared on the ballot. This is a supposition that cannot be made.
Furthermore, this solution limits the number of positions for which candidates
can vie to only three.
[15]
The INAC
Report recommended the following to the Minister:
Recommendation
We recommend
that the Minister, in accordance with paragraph 14(c) of the IBER, report to the
Governor in Council that three persons nominated to be candidates for
councillor were ineligible to be candidates. The Minister should further
recommend that the election of all councillors, held on November 8, 2004, be
set aside. Subsequently, an accelerated election will have to be held.
The election
for councillor was inherently flawed and could have had a very different
outcome had it not been. Candidates should be given an opportunity to vie for
all nine positions at another election. This presents, in our view, the most
equitable solution.
ANALYSIS
[16]
I deal
with two preliminary matters raised by counsel for the Respondent.
[17]
I do not
accept Counsel for the Respondent’s
argument, the Applicants failed to name all proper Respondents. He argues all
persons who appealed the election and all candidates to the scheduled by-election
should have been named as Respondents.
[18]
The Attorney General
is the proper party as it is the validity of the Order-in-Council which is in
issue and the by-election scheduled for August 12, 2005 is the direct and sole
consequence of the Order-in-Council. The persons suggested as Respondents may
apply to intervene on the hearing of the judicial review application and could
have applied to intervene on the hearing of the injunction application.
[19]
Furthermore,
I do not accept counsel for the Respondent’s suggestion the award of an interim
injunction in the circumstances of this case will grant the Applicants their
ultimate remedy. An interim injunction here would not invalidate the Order-in-Council
but would simply restore the status quo pending judicial review of the validity
of the Order-in-Council.
(1) The test
[20]
The test
to obtain an interim injunction is well known and has been set out in the
leading case of RJR-MacDonald Ihe v. Canada (Attorney General) [1994]
1 S.C.R. 311. An applicant must satisfy the three prong test of serious
issue, irreparable harm and balance of convenience.
(a)
Serious
Issue
[21]
In Bonspille
v. Mohawk Council of Kanesatake, [2003] 1 F.C. 521 (T.D.) I wrote
the following at paragraphs 25 and 26 about the need in the circumstances of an
application to reinstate the chairperson and a member of the five person Kanesatake
Mohawk Police Commission who had been advised they were no longer members of
that body which had been set up in 1997 under a tripartite agreement between
Canada, Quebec and the Mohawk Council concerning the establishment, maintenance
and supervision of a police force on the Kanesatake Reserve:
[25] For the
purpose of this interim injunction application, I am prepared to adopt the Woods
[N.W.L. Ltd. v. Woods, [1979] 1 W.L.R. 1294 (H.L.)] exception to the
serious-issue-to-be-tried test formulated in RJR-MacDonald, supra. In
that case, the Supreme Court of Canada said once satisfied that the application
for interim relief is neither vexatious nor frivolous; the motions judge should
proceed to consider the second and third tests.
[26] The Woods
exception requires a motions judge to engage in a more extensive review of
the merits. It applies here because, at least in part, what is being sought by
the applicants is interim reinstatement on the Commission pending the hearing
of an interlocutory application.
[22]
Counsel
for the applicants alleges four serious issues which meet the prima facie
serious issue test:
(1) The process
leading up to the making of the Order–in-Council was flawed because it breached
the principles of natural justice or procedural fairness. She cited the
following examples:
(a) The
non-disclosure of relevant information or the gathering of such information
after the applicants’ had filed their responding affidavits to the appeal
affidavits and this in violation of subsection 12 (2) of the Regulations.
(b) The
investigator did not thoroughly conduct his investigation. He only interviewed
selected people. He did not interview the Chief of the First Nation whose election
was not contested and did not interview the other Council members who were
elected but whose election was not contested. He did not interview Hugh King
who was forced to live in Thunder Bay because of housing
problems in the Reserve.
(c) Non-disclosure
for comment by the Applicants of the Investigator’s Report.
(d) Non-disclosure
of the INAC Report to the Minister.
(2) The Order-in-Council
is invalid in so far as it purports to set aside the election of those
applicants whose eligibility was not challenged. The Order-in-Council was made
pursuant to section 79(c) of the Act which permits the setting aside of the
election of an individual person if that person was ineligible to be a candidate.
Section 79(c) does not permit the setting aside of the election of a person who
was eligible. The Order-in-Council was not made under paragraph 79(b) of the
Act. Furthermore the record in this case shows that the appeals, the
responses, the investigation and the INAC Report to the Minister mainly centered
on the ineligibility of certain candidates to run for election.
(3) A legal issue
arises on what is the proper test to be applied to the concept of residence in
section 75 of the Act versus the concept of ordinary residence in Section 3
which is the test used by the Investigator.
(4) Whether
section 75(1) of the Act which requires persons nominated for the office of
councillor “to reside” on the Reserve is compatible with Section 15 of the Charter
of Rights and Freedoms in the light of the Supreme Court of Canada’s
decision in Corbiere v. Canada (Minster of Indian and Northern
Affairs, [1999] 2 S.C.R. 203.
[23]
In my view
Counsel for the Applicants has made out a strong prima facie case that
the Order-in-Council is invalid on the grounds advanced before this Court.
[24]
Counsel
for the Respondent did not seriously challenge the factual underpinning to the
Applicant’s fairness argument. It is conceeded the Investigator’s report was
not disclosed to the Applicants for comment nor was the INAC Report.
[25]
This Court
has already held in Morin v. Canada (Minister of Indian and Northern
Affairs), [1998] F.C.J. No. 82 that the non-disclosure of an investigator’s
report leading to the setting aside of a Band election violates the principles
of fairness.
[26]
For other
examples of the requirements of fairness in terms of ineligibility findings to
stand to the office of a councillor to a Band election see Sound v. Swan
River First Nation, 2002 FCT 602, Duncan v. Behdzi Ahda First Nation
Band (Council), 2002 FCT 581; Samson Indian Band v. Bruno,
2005 FC 1140 and Frank v. Bottle, [1993] F.C.J. No. 670.
[27]
In the
human rights context it has been held fairness requires an investigator’s
report be disclosed before the Canadian Human Rights Commission decides a
complaint. See Radulesco v. Canada (Human Rights Commission),
[1984] 2 S.C.R. 407 and an investigation of a complaint must be thorough see, Slattery
v. Canada (Human Rights Commission, [1994] 2 F.C. 574.
[28]
I am also
of the view the matters of statutory interpretation raised by Counsel for the Applicants
raise strong prima facie questions whether under section 79 (c) of the
Act the Govern-in-Council can set aside the election of eligible candidates and
whether the concept of “residence” was properly applied. I make no comment on
the strength of the Charter issue as this point was not pressed before me.
[29]
The
Applicants will suffer irreparable harm if the injunction is not granted; damages
do not provide remedies for the loss of elective office. I adopt the words of
Justice MacKay in Frank v. Bottle, supra, where he stated at paragraph
27 “The office of Chief is political, filled by a valid election, with the
attendant responsibilities that transcend any concept that he is an employee of
the Tribe, just as is the office of council member” (emphasis mine)
[30]
Other instances
where this Court has held irreparable harm has been made out in similar
circumstances see Gabriel v. Mohawk Council of Kanesatake,2002 FCT 483; Bonspille
v. Mohawk Council of Kanesatake, supra, and Sound v. Swan River
First Nation, supra.
[31]
Counsel
for the Respondent cited Dodge v. Caldwell First Nation of Point Pelee, [2003]
FCT 483 to show that the Applicants would not suffer irreparable harm because
all of the Applicants are candidates for the office of councillor in the
elections scheduled for August 12, 2005 and accepted as such by the Electoral
Officer including the three applicants found ineligible by INAC.
[32]
In my view
Dodge, supra, is not applicable. It is not a case where a person
was divested from office after being elected. The issue in Dodge was
whether an election had been properly called. The situation at hand is
identical to Sound, supra.
[33]
Finally,
the balance of convenience favours the Applicants. Reinstatement to office in
the case of individuals who were democratically elected to office pending judicial
review of eligibility where a strong prima facie case has been made out
that the judicial review has a strong chance of success simply restores the status
quo on an interim basis. Further, reinstatement permits the urgent business of
the Gull Bay First Nation to be carried out. It would be contrary to the
public interest not to have a functioning First Nation government pending final
determination of judicial review. That there is urgent business which needs
urgent attention is amply shown in the evidence: wholly inadequate housing,
water treatment issues and electricity concerns to name a few.
[34]
Counsel
for the Respondent mentioned the fact there was a third party Manager in
place. I see nothing in Franco Crupi’s affidavit to the effect that his
functions as the third party Manager replace the need for a properly
functioning Council. His affidavit is to the contrary.
[35]
Postponing
the upcoming election arising solely from the setting aside of Council election
held November 2004 is also appropriate where that setting aside faces a serious
challenge as to its validity.
[36]
I cite the
following cases which have endorsed the view that reinstatement and postponing
of scheduled election in circumstances similar to the situation at hand are:
Frank v. Bottle, supra,; Samson
Indian Band v. Bruno, supra,; Gabriel v. Mohawk Council of Kanesatake;
Bonspille,;supra,; Francis v. Mohawks of Akwesane Band
[1993] F.C.J. No. 369,; Duncan, supra and Sound, supra.
[37]
For the
above reasons, this motion is granted.
ORDER
THIS COURT ORDERS that
1.
The
holding of the Gull Bay First Nation by-election for Council scheduled for
August 12, 2005 is prohibited pending final determination of the Applicants’
Application for Judicial Review of Order-in-Council 2005-1289;
2.
The nine
(9) Gull Bay First Nation Councillors, duly elected on November 8, 2004 are
restored to office pending final determination of the validity of Order-in-Council
2005-1289.
3.
Costs to
the applicants in any event of the cause on a party-party basis on a scale at
column IV. There is nothing in the record to justify solicitor-client costs.
4.
The
hearing of the Judicial Review application must be expedited and counsel for
the parties shall consult and propose to the Court a scheduling order on or
before August 18, 2005.
“François
Lemieux”
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