Bonspille v. Mohawk Council of Kanesatake, 2002 FCT 677

Date: 20020614

Docket: T-824-02

Neutral citation: 2002 FCT 677

BETWEEN:

                                      LOUISE BONSPILLE AND BRENDA ETIENNE

                                                                                                                                                      Applicants

                                                                                 and

                                            MOHAWK COUNCIL OF KANESATAKE,

MAVIS KATSI'TSEN:HAWE ÉTIENNE, JOCELYN BONSPILLE, KANERAHTENHA:WI HILDA NICHOLAS and

THE ATTORNEY GENERAL OF CANADA for The Solicitor General of Canada

                                                                                                                                               Respondents

                                                            REASONS FOR ORDER

LEMIEUX J.

[1]                 Louise Bonspille and Brenda Etienne, the applicants, were, until May 6, 2002, respectively the chairperson and a member of the five person Kanesatake Mohawk Police Commission (the Commission or KMPC).

[2]                 On May 6, 2002, the applicants were advised by individual letters sent by Steven L. Bonspille, acting as Chief portfolio holder, Policing and Justice of the Mohawk Council of Kanesatake (the Council) that they were no longer members of the Commission. The reason given was that their term of office had expired.

[3]                 On May 27, 2002, the applicants filed a judicial review proceeding challenging the May 6^th decision of Council "purporting to remove Louise Bonspille and Brenda Etienne as members of the Kanesatake Police Commission and related decisions affecting the independence of the said Commission" in contravention of the KMPC-Policies and Procedures Resolution enacted by Council on October 7, 1997 (the Resolution).

[4]                 The application for judicial review seeks to quash the May 6, 2002 decision. It also seeks an interim and interlocutory injunction "preserving the status quo as it was on May 5, 2002 in respect of memberships of Louise Bonspille and Brenda Etienne as Commissioners of the Commission". One of the related decisions made by Council was announced by Interim Grand Chief Bonspille on May 10, 2002. Three commissioners were appointed to the Commission by Council: two to fill the vacancy of the applicants and another to replace a member of the Commission who had previously resigned.

[5]                 At this juncture, I mention that on April 29, 2002, Justice Tremblay-Lamer of this Court issued an interlocutory injunction pending trial in Court File T-33-02 requiring the Council to reinstate James Gabriel, the applicant there, as Grand Chief of the Council.

[6]                 Also on May 27, 2002, the applicants served and filed a notice of motion seeking an interim injunction pursuant to section 18.2 of the Federal Court Act setting aside Council's May 6, 2002 decision and preserving the status quo as it was on May 5, 2002. Essentially, the applicants seek their reinstatement as members of the Commission pending the hearing and determination of an interlocutory injunction seeking the same remedy.

[7]                 The applicants' notice of motion was not made pursuant to rule 374 of the Federal Court Rules, 1998 (the Rules) which authorizes a judge to grant an interim injunction on an ex parte motion for a period of not more than 14 days where the judge is satisfied, inter alia, in a case of urgency, that no notice is possible. As a result Council appeared to oppose the motion for the interim injunction as did the Attorney General for Canada (Canada) but in a manner akin to amicus curiae.

[8]                 In support of their notice of motion, the applicants have filed three affidavits. The Attorney General of Canada filed one affidavit which was responded to by Council through the affidavit of Steven Bonspille described as a Chief of the Council. None of these affidavits could be cross-examined upon nor appropriate responding affidavits could be filed. In addition, I was advised that the Council had filed a notice of motion returnable in Montreal on June 10^th for the purpose of striking out two of the applicants' affidavits as well as substantial portions of the main affidavit jointly sworn by the applicants.

BACKGROUND

[9]                 The Commission was established in 1997 after Canada, Quebec and the Council first entered into an agreement, in late 1996, concerning the establishment and maintenance of a Police Force in Kanesatake (the Agreement). The Agreement was renewed for a further three years commencing March 1999 and has now been extended for a further year to March 31, 2003.

[10]            The Agreement:

          (a)        Establishes the Kanesatake Mohawk Police Force (the Police Force) responsible generally for maintaining peace, order and public security on Band Territory. Subject to section 5.3 of the Agreement, the members of the Police Force exercise their powers as employees of the Council and under the direction of a Chief of Police. Council is responsible for recruitment and selection;

          (b)       Contains Section 5 of the Agreement entitled Independence and Accountability. Section 5.1 reads:

It is agreed that, in order to ensure the independence of the Kanesatake Mohawk Police Force, the Mohawk Council of Kanesatake will maintain the Kanesatake Mohawk Police Commission accountable to the Mohawks of Kanesatake for the orientation of the Kanesatake Mohawk Police Force and responsible for establishing its goals, objectives, priorities and management policies and for overseeing its administration.

Section 5.2 outlines the responsibilities of the Commission. Section 5.3 reads:

The Kanesatake Mohawk Police Commission is responsible for establishing and maintaining the objectives and priorities of the Kanesatake Mohawk Police Force. Such responsibilities shall include all decisions relating to hiring and dismissal of members of the Police Force, as well as ultimate responsibility for disciplinary measures against members of the Police Force.

Section 5.4 provides the Commission consists of a maximum of 5 members appointed by the Council while section 5.5 stipulates the rules and procedures of the Commission are adopted by the Council which shall contain, inter alia, a provision that the members of the Commission shall be subject to dismissal in accordance with causes outlined.

Section 5.7 provides the Commission will ensure that the Chief of Police exercises authority that is independent from the Council, its members or staff, in respect of the performance of his duties while section 5.8 reads:

It is agreed that the Council, its members, staff and any agency established by the Council must refrain from issuing directions to the Chief of Police and to the members of the Kanesatake Mohawk Police Force with regard to specific operational decisions or day to day operations of the Kanesatake Mohawk Police Force.

          (c)        Creates a Liaison Committee (the Liaison Committee) composed of 2 members named by the Council, one member named by Canada and the other member named by Quebec, while section 8 provides for mutual assistance and operational cooperation between La Sureté du Québec, the Royal Canadian Mounted Police and the Police Force. Section 9 concerns financial matters not relevant here.

[11]            As noted, Council passed its Commission Policies and Procedures Resolution on October 7, 1997. This Resolution:

          (a)       contains a number of whereas clauses, two of which read:

Whereas the Commission must ensure that the Kanesatake Peacekeepers are independent from the Mohawk Council of Kanesatake;

Whereas while the Commission is accountable to the Mohawk Council of Kanesatake, it is an autonomous entity and shall operate independently from the Council.

          (b)       names the five first members of the Commission and further resolves the Commission will ensure the continued independence of the Police Force from the governing body of Kanesatake;

          (c)       contains a clause dealing with dismissal of Commission members and a further clause providing the Council shall not dissolve the Commission or remove any member arbitrarily;

          (d)       contains a term of office clause which reads:

2 Commission members shall initially serve a term of office of three (3) years, the remaining three (3) shall serve the term of office of five (5) years.

Any member of the Commission may resign by sending a notice of resignation to the Commission.

          (e)       provides for vacancies in the following terms:

Should a position on the Commission become vacant, the Commission shall immediately notify the Mohawk Council of Kanesatake. In consultation with the Commission, the Mohawk Council shall appoint a replacement who is recommended by the Commission.

          (f)        provides for the election of a chairperson and vice-chair as follows:

The members of the Commission shall elect a chairperson and vice-chair after the Commission's first official meeting and thereafter when the term of office expires according to policy or becomes vacant for any other reason shall be filled with a permanent or temporary appointment before the Commission deals with any public complaint.

[12]            The record reveals that there are serious tensions between the Commission and Council which seem to have surfaced after a number of new Chiefs, including Chief Bonspille, were elected to Council in July 2001.

[13]            The Commission and Council disagree on their various mandates, authorities and responsibilities. The Commission believes Council or some of its members are interfering with the autonomy of the Police Force whose primary focus has been to clean out the drug problem said to exist and who appear at risk from criminal elements. Furthermore, the Commission believes Council or some of its members are trenching upon Commission responsibilities and is interfering in matters which are its responsibility. One police chief was fired in the fall of 2001. A dispute erupted between Council and the Commission on who had authority to extend the contract of interim Police Chief Isaacs who replaced the Police Chief who had been dismissed.    Council as employer refused to extend Police Chief Isaacs' contract.

[14]            By March, 2002, relations between the Commission and the Council had further deteriorated. On March 1, 2002, the Chairperson of the Commission wrote to the Liaison Committee complaining about Council interference in the Police Force. On March 14, 2002 Canada sought an emergency meeting of the Liaison Committee while at the same time inviting the Commission. Chief Bonspille objected to the Commission's participation on the ground the Commission was not a member of the Liaison Committee.

[15]            On April 2, 2002 all of the members of the Commission, plus Chief Gabriel and two other Chiefs wrote to Responsible Ministers for Canada and Quebec expressing concern about political interference by the Council with the Police Force and with non respect of the Agreement.

[16]            Given the urgency of the situation, on April 10, 2002, the Liaison Committee met without the Commission's presence (see Yves Leguerrier April 9, 2002 letter to Chief Bonspille). Its purpose was to discuss the Commission's allegations. After the Liaison Committee's meeting Yves Leguerrier, Senior Advisor, Solicitor General's Department, wrote to Chief Bonspille to confirm the common understanding reached and to confirm his understanding for the next steps. He wrote:

Since there is a major disagreement between the Mohawk Council of Kanesatake (MCK) and the Commission related to their respective interpretation of the Agreement, the portfolio holders, Steven Bonspille and Clarence Simon have committed to meet with the members of the Police Commission with a view to try and resolve their ongoing dispute.

A commitment was made by the MCK Representatives on the Liaison Committee that nothing (no hiring or firing) will be done until there is a mutual consent on how the MCK and the Commission will exercise their respective roles and responsibilities, as set out in the Agreement.

A commitment was made by the MCK Representatives on the Liaison Committee that no action would be taken by the MCK that would contribute to exacerbate the situation.

Finally, it was agreed that there will be another meeting of the Liaison Committee in the shortest possible delay (we mentioned a couple of weeks) where the Chair of the Police Commission and another Commissioner of her choice will participate.

(emphasis mine)

[17]            On April 18, 2002 a meeting was held between the members of the Police Commission and the two Chiefs responsible for the Police Portfolio. In his responding affidavit, Chief Bonspille said he was prepared to meet with the Commission for the entire day in order to resolve the questions arising from the April 10^th Liaison Committee meeting but was informed that the applicants had only one hour to spare for him.

[18]            Chief Bonspille, in his responding affidavit, states that at no time during the Liaison Committee's April 10^th meeting did the question of the Commissioners' expired terms ever arise and also that at no time during the April 18^th meeting with the Commission did the Commissioners' expired terms ever arise.

[19]            As stated, on May 6, 2002, the applicants were advised by Chief Bonspille that, as of May 6, 2002 they were no longer members of the Commission because their terms had expired. Chief Bonspille stated that it was without question that the Commission members are appointed and replaced by the Council. He pointed to the terms of office provision in the Resolution stating that two Commission members shall initially serve a term of office of three years with the remaining three serving a term of office of five years. He noted the Resolution was effective October 7, 1997 and that two of the members' terms had expired by October 7, 1999 and the remaining three would expire by October 7, 2002. He said the Council should have replaced two members in October, 1999. He also noted one Council member (not one of the applicants) had resigned her position. The applicants were the two members selected as having their term expire in October of 1999.

[20]            That same day, May 6, 2002 all of the members of the Commission wrote to the Council stating that it did not recognize Council's authority to make such a decision and that it would continue to the best of its abilities without Council interference. It pointed to a clause in the Resolution stating the Council shall not dissolve the Commission or remove any member arbitrarily and pointed to another provision in the Resolution that a member may be dismissed from the Commission by a majority vote of Council members. They said this was not done.

ANALYSIS

(1) The Test:

[21]            In Fournier Pharma Inc. v. Apotex Inc. et al., [1999] 1 C.P.R. (4^th) 344, Justice Tremblay-Lamer stated that, in addition to the well known tripartite test set out in R.J.R.-Macdonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311 an applicant for interim relief also had an additional burden of establishing urgency of such importance that there is no alternate way to proceed in order to counter the harm that might be or is actually occurring.

[22]            Although this was not an ex parte motion, I accept the argument put forth by the Council that the applicants must establish an urgency of such importance so as to require relief on an immediate basis i.e. must show an imminent threat of irreparable harm that will arise prior to the hearing of any interlocutory injunction. I accept that high standard because the respondents, principally the Council, have not had an opportunity to cross-examine the applicants' affidavits, nor file responding affidavits. In addition, the record is unsettled because of Council's motion to strike affidavits or parts of them.

[23]            I agree with Council's submissions that an interlocutory injunction is an extraordinary and highly discretionary remedy, and that interim injunctions are particularly rare in that it marks a clear departure from the procedural requirements which are applied to standard applications for an interlocutory injunction, most notably the opportunity to cross-examine an applicant on his affidavits. (See Fournier Pharma, supra.)

[24]            I propose to discuss the urgency aspect with irreparable harm, and with balance of convenience.

(2) Serious Issue:

[25]            For the purpose of this interim injunction application, I am prepared to adopt the Woods exception to the serious issue to be tried test formulated in R.J.R.-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.

[27]            I am satisfied the applicants have raised strong prima facie serious issues which I outline below:

          (1)       Was Council's action a disguised firing and, if so, did Council have authority under its Resolution to dismiss in the circumstances;

          (2)       Did Council have the authority to retroactively designate two Commission members as the ones holding the office for three years when Council did not do so at the original time of their appointments; alternately, was the designation of the rotating term of office of members of the Commission on a fair reading of the Agreement and Resolution a matter left for the Commission itself;

          (3)       Assuming Council had the power to declare a vacancy, did it act in good faith when it selected these applicants as those holding office for three years and effecting their vacancy;

          (4)       Did Council breach an undertaking, if any, with government that nothing would be done to exacerbate matters in the expectation a meeting would take place soon between the Liaison Committee and the Chair and another member of the Commission;

          (5)       In making the decision it did, did Council breach the principles of fairness when it acted unilaterally without consulting the applicants;

            (6)       Did Council's decision breach its own Resolution?

(3) Irreparable harm:

[28]            In R.J.R.-Macdonald, supra, Justices Sopinka and Cory, for the Court, said that at this stage:

... the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision of the merits does not accord with the result of the interlocutory application.

[29]            The Justices went on to say that "irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

[30]            Council argues the applicants have shown no clear evidence of imminent irreparable harm (the urgency test) should the interim injunction not be granted pending the hearing of any interlocutory injunction and prior to there being cross-examination.

[31]            Counsel for the respondent Council argues there is no evidence offered their reputations will be affected in any manner by the expiry of their terms and certainly not any evidence that their reputations would be affected on an imminent basis. She points to a communique from the Council where the applicants have been publicly commended for their endeavours.

[32]            Pointing to Weatherill v. Canada (Attorney-General) (1998), 143 F.T.R. 302 she argues loss of office in itself does not constitute irreparable harm to the applicants. She reiterates that I should disregard any imminent harm to the Commission because the test is there must be irreparable harm to the applicants personally.

[33]            In any event, she argues there is no specific evidence of a concrete nature to establish imminent danger to the functioning of the Commission and there is no evidence that even if meetings of the Commission are scheduled, the Commission could not function perfectly well with the new commissioners appointed by Council. She then argues no clear evidence has been offered the community will suffer irreparable harm should the interim injunction not be granted and the applicants' allegations are clearly speculative.

[34]            She closes by saying the applicants delayed bringing on this application.

[35]            I am not persuaded by the arguments put forward by counsel for the respondent Council. The applicants came to this Court, not in their personal capacity but in their capacity as Chairperson and a member respectively of the Police Commission whose role is to oversee the functioning of the Police Force. They say they have been removed from office illegally.

[36]            While the applicants do not hold elected office, they hold an appointed public office of a significant importance, responsibility and thrust that of insuring the independent operation of the Police Force which has the responsibility for maintaining peace, order and security on Band Territory in difficult and challenging times.

[37]            In Frank v. Bottle [1993] F.C.J. No. 617, Justice MacKay was dealing with an interlocutory injunction prohibiting the removal of an elected Band Chief. He was faced with an argument no injunction should issue because any harm was not irreparable since it is redressable by damages. Justice MacKay rejected that view and said the Chief was not an employee of Council nor in his view could he be considered an employee of the First Nation. He said that the office of Chief is political, filled by valid election, with attended responsibilities that transcend any concept that he is an employee of the First Nation. He found irreparable harm in loss of reputation.

[38]            I apply Justice MacKay's reasoning. The applicants before me are not employees of the Council nor of the Band. While their office is not political it is a public office mandated by Canada and Quebec.

[39]            Justice Tremblay-Lamer in Gabriel, supra, applied Frank and Bottle. She further reasoned:

Further, the position of Grand Chief is a prestigious one and is one of great honour within the tribe.

She said the Grand Chief acts as a spokesman for the Council and the community and that it is a very important role. Loss of prestige, in her view, could not be compensated in damages. She said every day out of office is time gone where he cannot speak on behalf of the policies for which he was elected and which are of importance to the community.

[40]            Again, by analogy, Justice Tremblay-Lamer's reasoning applies to the case at hand. Appointment as a member of the Commission or election as a Chairperson are positions of public trust and responsibility, mandates contemplated by Canada and Quebec in the Agreement. The carrying out of their duties affects fundamental aspects of life on Band Territory and the very purpose for which the Aboriginal Police was created. Each day out of office, prevents the applicants from performing their duties as part of the Commission in the oversight of the Police Force. This is not compensable in damages.

[41]            I prefer Frank and Bottle, supra to Weatherill, supra which was a stay of proceedings application where removal had not been effected.

[42]            Further in my view, three weeks to bring on this application is not inordinate delay.

[43]            In terms of urgency, clearly the issue of the conflict between the Commission and the Council was considered a matter of urgency, necessitating an emergency meeting of the Liaison Committee. Canada considered the urgent resolution of the complaints brought by the Commission concerning political interference with the Police Force and breach of the Agreement made by the Commission as serious ones which had to be resolved. They proposed to meet with the Chairperson and another member of the Commission.

[44]            In the circumstances, I find the applicants have demonstrated imminent irreparable harm.

Balance of Convenience:

[45]            Justices Sopinka and Cory in R.J.R.-Macdonald, supra, framed the balance of convenience test the way Justice Beetz described it in Manitoba (Attorney-General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 as follows:

A determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits.

At page 350 of their reasons, the Justices continued:

Among the factors which must be considered in order to determine whether the granting or withholding of interlocutory relief would occasion greater inconvenience are the nature of the relief sought and of the harm which the parties contend they will suffer, the nature of the legislation which is under attack and where the public interest lies.

In Frank v. Bottle, supra, Justice MacKay ruled as follows:

I am persuaded that, in this case, the balance of convenience favours the continuance of the injunctive orders earlier issued on an interim basis. The irreparable harm that would be caused to the plaintiff if the injunction order is not now granted and he should subsequently succeed at trial of the action he has initiated outweighs the harm likely to be caused to the defendants acting as Council if the injunction continues and it subsequently turns out that the plaintiff is unsuccessful in the action.

He was of the view the continuance of the injunction against the plaintiff's removal from office, pending determination of the validity of the action of the defendants, did not, in itself, do more than maintain the legal status of the plaintiff claimed as a result of his election.

[46]            I am of the view that Justice MacKay's words are apt here. Clearly, the applicants will be harmed more if they should subsequently succeed on the merits than would the Council. The applicants will have been prevented from discharging their public duties vested in them when they were appointed and in particular, in overseeing the independence of the Police Force and taking appropriate measures to achieve that independence.

[47]            The record reveals a deep split between the Council and the Commission on the interpretation of their respective mandates, duties and responsibilities, a division which undermines the purposes of the Agreement. The public interest requires its resolution because if the conflict is not resolved, I fear the existence of the Police Force may be in peril and that cannot be in the public interest as expressed by Canada and Quebec.

[48]            In my view, the Liaison Committee expected to meet with the existing Chairperson of the Commission along with another member in order to get at the bottom of previously stated Commission grievances. The public interest compels the applicants interim reinstatement.

[49]            In Frank v. Bottle, supra, Justice MacKay added:

Granting an injunction preserving the status quo in terms of the legal relationship of the parties prior to the events in March 1993 does provide time for the parties to reflect upon their responsibilities and interests, shared in common, in serving the Blood Tribe through the offices to which they were duly elected. It provides time for them and those who may represent them to explore the interests they share in common, the differences between them and possible compromise of some of those differences.

[50]            What Justice MacKay expressed are words of wise counsel. Restoring, on an interim basis, the status quo ante gives the Council and the Commission the time to cool off, time to reflect on the fundamental purpose of the Agreement and why an Aboriginal Police Force was set up in Kanesatake and time to set aside their private interests in the hope consensus can emerge.

[51]            For all of these reasons the motion for interim injunction is granted. The status quo as it was prior to May 5, 2002 is restored. The Council is required to reinstate the applicants as members of the Commission until such time as an interlocutory order is rendered in this matter.

[52]            Further, with the consent of the parties, pursuant to Rule 384 of the Rules, I order that this proceeding be a specially managed proceeding. I set down the hearing for the interlocutory injunction in Ottawa for Tuesday, August 13, 2002 starting at 9:30 a.m. for the duration of one day should such an application be necessary. If an application for interlocutory injunction is to proceed on Tuesday, August 13, 2002, I direct the parties, after consultation with one another, to submit to the Court, no later than Friday, June 28, 2002 an agreed to schedule for the filing of motion records including cross-examination on affidavits. Costs shall be in the cause.

                                                                                               "F. Lemieux"

                                                                                                       JUDGE

OTTAWA, ONTARIO

June 14, 2002

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-824-02

STYLE OF CAUSE: Louise Bonspille and Brenda Etienne v. Mohawk            Council of Kanesatake et al.

PLACE OF HEARING:                                   Ottawa, Ontario

DATE OF HEARING:                                     June 6, 2002

REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE LEMIEUX

DATED:                      June 14, 2002

APPEARANCES:

Mr. Richard Keswick                                           FOR RESPONDENTS

Ms. Tina Hobday

Mr. Peter Annis                                                    FOR APPLICANT

Ms. Anick Pelletier                                               FOR RESPONDENT

SOLICITORS OF RECORD:

Mr. Richard Keswick                                           FOR RESPONDENTS

Ms. Tina Hobday

LANGLOIS GAUDREAU

Montreal, Quebec

Mr. Peter Annis                                                    FOR APPLICANT

VINCENT DAGENAIS GIBSON LLP

Ottawa, Ontario

Ms. Anick Pelletier                                               FOR RESPONDENT

DEPARTMENT OF JUSTICE

Ottawa, Ontario