Date: 20000731
Docket: T-1152-00
BETWEEN:
CHIEF LAWRENCE CHAPMAN, COUNCILOR
RONALD BACHMIER, COUNCILOR ELIZABETH
BOUCHER IN THEIR CAPACITY AS CHIEF AND
COUNCIL OF THE LAC DES MILLE LACS FIRST
NATION AND ON BEHALF OF THE LAC DES MILLE
LACS FIRST NATION
Applicants
-and-
ELAINE HOGAN, TRACY MORRISON, GARRY
KISHIQUEB, ROY PETERS AND CLARENCE
MCKENZIE IN THEIR OWN CAPACITY AND IN
THEIR CAPACITY AS PURPORTED CHIEF AND COUNCIL
OF THE LAC DES MILLE LACS FIRST NATION
Respondents
REASONS FOR ORDER
GIBSON J.
Introduction
[1] These reasons arise out of an application for the following interlocutory relief:
| 1. An interlocutory injunction prohibiting the respondents or anyone taking instruction from them or anyone supporting them or anyone having knowledge of this injunctive order from in any way, directly or indirectly: |
| i) representing the respondents to be the Council of the First Nation until such time as this Honourable Court decides the issue raised in this proceeding; |
| ii) exercising the authority of the Council or carrying on the business of the Council until such time as this Honorable Court decides the issues raised in this proceeding; |
| iii) unlawfully interfering with the Council"s exercise of its lawful authority or its ability to carry out the business and affairs of the First Nation until such time as this Honorable Court decides the issues raised in this proceeding; |
| on condition that the applicants shall by no later than October 1, 2000 call for a leadership review pursuant to the provisions of the Custom Leadership Selection Code of the First Nation (the "Selection Code") and if required by reason of the results of the leadership review call for an election pursuant to the provisions of the Selection Code. |
| 2. An order authorizing the Council to fulfill its lawful governmental duties and responsibilities to the First Nation until such time as the Leadership review as set out in paragraph one above is held or until such further order of this Honourable Court. |
| 3. An order requiring the respondents to fully disclose any and all decisions, resolutions or other purported exercises of the authority of the Council that the respondents have made, resolved or exercised since April 29, 2000 and to produce any and all documentation in respect thereof within 7 days of the date of this order. |
| 4. An order requiring the respondents to fully account for any and all funds and/or benefits and/or monies received by or on behalf of the respondents in respect of the First Nation or paid out or disbursed or transferred by the respondents since April 29, 2000 within 7 days of the date of this order. |
| 5. An order requiring the respondents to immediately transfer any and all funds or other consideration received for the benefit of the First Nation to the applicants. |
| 6. An order requiring the respondents to fully disclose and transfer any and all documentation in their possession, power or control with respect to the governance of the First Nation to the applicants within 7 days of the date of this order. |
| 7. If necessary an order expediting the hearing of the application for judicial review. |
| 8. Costs of this motion on a solicitor-client basis payable forthwith, |
| 9. Such other relief as counsel may advise and this Honorable Court deems just. |
[2]
Underlying this application is an application for judicial review in respect of the "...actions/decisions/status of the purported Chief and Council of the Lac des Mille Lacs First Nation who since April 29, 2000 have wrongly claimed to be and have represented themselves to be the Chief and Council of the First Nation and who have purported to exercise and continue to purport to exercise the authority of the Chief Council of the First Nation".
Background
[3] At the root of the application for judicial review underlying this application for interlocutory relief is an ongoing dispute regarding the governance of what would appear to be a very troubled First Nation. In an affidavit filed on the application for interlocutory relief, Chief Lawrence Chapman, one of the Applicants on the application for judicial review attests:
| The First Nation, has approximately 350 known adult members scattered throughout North America, and has two essentially uninhabited reservations located northwest of Thunder Bay. This unfortunate situation arose as a result of the forced dispersal of the members of the First Nation many years ago by reason of, inter alia, dams and hydroelectric projects which flooded much of our lands, forcing all of my people to leave the reservation and scatter throughout northern Ontario and other parts of North America. This situation, needless to say, has had a very significant impact on the ability of the First Nation to maintain its physical and cultural identity and to survive as a First Nation.1 |
Apparently, in addition, it has had a significant impact on the ability of the First Nation to effectively govern itself.
[4] This is not the first time that the governance dispute in relation to this First Nation has been before this Court. In Lac des Mille Lacs First Nation et al. v. Chapman et al.2, Mr. Justice Cullen wrote at page 229:
| At the outset I must state my disappointment that the members of this First Nation could not resolve this dispute on their own. It is a sad event that the parties in this proceeding are in a dispute which involves such animosity. Having said that, however, I must make it clear to all parties that this decision is not an endorsement of which Council would be better from the standpoint of the First Nation, nor is it an endorsement of any particular person sitting on Council. My decision is based solely on principles of administrative law and procedure. |
Precisely the same could be said here.
[5] Mr. Justice Cullen concluded at page 236:
| In the result, I find that the respondents Lawrence Chapman, Elizabeth Boucher, Ron Bachmier and James Nayanookeesic constitute the proper Chief and Council of the First Nation Lac des Milles Lacs. Furthermore, the Custom Leadership Selection Code is the official band custom and its procedures should be followed in all subsequent selections of Chief and Council until such time as the custom is changed according to a broad consensus of the band members. If the members of this First Nation wish to change their leadership, they will have the opportunity to do so within five years of the last selection process according to the provisions of their own Selection Code.... |
On the evidence before me, the five year period referred to by Mr. Justice Cullen had not expired when the respondents purported to assume governance of the First Nation on or about the 29th of April, 2000. Further, it would appear that the assumption of governance by the respondents was not done according to the provisions of the First Nation"s Selection Code.
Analysis
[6] It was not in dispute before me that, in order to succeed on this application for interlocutory relief, the onus was on the applicants to demonstrate that the three-part test confirmed by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General)3 is fulfilled. The elements of that test are serious issue to be tried, irreparable harm and balance of convenience or inconvenience.
[7] At page 335 of the RJR-MacDonald decision, Justices Sopinka and Cory, writing for the Court, wrote:
| Prior to the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396, an applicant for interlocutory relief was required to demonstrate a "strong prima facie case" on the merits in order to satisfy the first test. In American Cyanamid , however, Lord Diplock stated that an applicant need no longer demonstrate a strong prima facie case. Rather it would suffice if he or she could satisfy the court that "the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried". |
[8] At page 337, the learned Justices continued:
| What then are the indicators of a "serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. |
[9] At page 338, the Justices noted that two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits. Counsel for the applicants urged that the second of those two exceptions applied on the facts of this matter. The second exception was described in the reasons in RJR-MacDonald in the following terms at pages 339 and 340:
| The second exception to the American Cyanamid prohibition on an extensive review of the merits arises when the question of constitutionality presents itself as a simple question of law alone. This was recognized by Beetz J. in Metropolitan Stores, at p. 133: |
| There may be rare cases where the question of constitutionality will present itself as a simple question of law alone which can be finally settled by a motion judge. A theoretical example which comes to mind is one where Parliament or a legislature would purport to pass a law imposing the beliefs of a state religion. Such a law would violate s. 2(a) of the Canadian Charter of Rights and Freedoms, could not possibly be saved under s. 1 of the Charter and might perhaps be struck down right away; ... it is trite to say that these cases are exceptional. |
| A judge faced with an application which falls within the extremely narrow confines of this second exception need not consider the second or third tests since the existence of irreparable harm or the location of the balance of convenience are irrelevant in as much as the constitutional issue is finally determined and a stay is unnecessary [citation omitted.] |
[10] Counsel urged that on the foregoing authority, it was unnecessary for me to examine the issues constituting the second and third elements of the tri-partite test, namely irreparable harm and the balance of convenience.
[11] I reach a different conclusion. The quotation relied on by Justices Sopinka and Cory from the reasons of Justice Beetz, quoted above, note that it is trite to say that the cases falling within the second exception to the general rule that extensive review of the merits is not required are "exceptional". Justices Sopinka and Cory themselves speak in the foregoing quotation of the "...extremely narrow confines of this second exception...". I am satisfied that this matter does not fall within those extremely narrow confines and that therefore, while I am satisfied against a relatively low threshold test for a serious issue, that a serious to be tried has been demonstrated, the onus remains on the applicants to demonstrate irreparable harm to the applicants and balance of convenience in their favour.
[12] I conclude that the applicants have failed to discharge the onus upon them to demonstrate that they will suffer irreparable harm if the interlocutory relief sought is not granted. On the material before the Court, a finding of irreparable harm would be entirely speculative.4 That balance of convenience lies in favour of the applicants. Indeed, given that the respondents assumed governance of the First Nation almost three months ago and that balance of convenience tends generally to favour maintenance of the status quo, I am satisfied on the evidence before the Court that balance of convenience favours rejection of the application for interlocutory relief.
[13] An issue exists on the material before the Court as to whether the application for judicial review underlying this application was filed in a timely manner. In light of the foregoing analysis on the substance of the interlocutory application, I will not address the issue of timeliness.
Conclusion
[14] For the foregoing reasons, the applicants" application for interlocutory relief, as recited in the introduction to these reasons will be dismissed. Costs of the application will be in the cause.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
July 31, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: CHIEF LAWRENCE CHAPMAN, COUNCILOR |
RONALD BACHMIER, COUNCILOR ELIZABETH
BOUCHER IN THEIR CAPACITY AS CHIEF AND
COUNCIL OF THE LAC DES MILLE LACS FIRST
| NATION AND ON BEHALF OF THE LAC DES MILLE LACS FIRST NATION |
- and -
ELAINE HOGAN, TRACY MORRISON, GARRY
KISHIQUEB, ROY PETERS AND CLARENCE
MCKENZIE IN THEIR OWN CAPACITY AND IN
| THEIR CAPACITY AS PURPORTED CHIEF AND COUNCILOF THE LAC DES MILLE LACS FIRST NATION |
| DATE OF HEARING: MONDAY, JULY 24, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
DATED: MONDAY, JULY 31, 2000
| APPEARANCES BY: Mr. Harvey Stone |
| SOLICITORS OF RECORD: Bird & Thatcher |
Barristers & Solicitors
244 Camelot Street
Thunder Bay, Ontario
P7A 4B1
Weiler, Maloney, Nelson
Barristers & Solicitors
101 N. Syndicate Avenue, Suite 200
Thunder Bay, Ontario
P7B 6T6
For the Respondents
FEDERAL COURT OF CANADA
Date: 20000731
Docket:T-1152-00
BETWEEN:
| CHIEF LAWRENCE CHAPMAN, COUNCILOR |
RONALD BACHMIER, COUNCILOR ELIZABETH
BOUCHER IN THEIR CAPACITY AS CHIEF AND
COUNCIL OF THE LAC DES MILLE LACS FIRST
| NATION AND ON BEHALF OF THE LAC DES MILLE LACS FIRST NATION |
Applicants
- and -
ELAINE HOGAN, TRACY MORRISON, GARRY
KISHIQUEB, ROY PETERS AND CLARENCE
MCKENZIE IN THEIR OWN CAPACITY AND IN
| THEIR CAPACITY AS PURPORTED CHIEF AND COUNCILOF THE LAC DES MILLE LACS FIRST NATION |
Respondents
__________________
1Applicant"s Application Record, page 14, paragraph 8.
2(1998), 149 F.T.R. 227.
3[1994] 1 S.C.R. 311.
4See: Glaxo Canada Inc. v. Minister of National Health and Welfare et al. (1987), 18 C.P.R. (3d) 206 at 223 (F.C.T.D.)
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