Docket: T-1964-11
Citation: 2012 FC 263
Vancouver, British Columbia, February
24, 2012
PRESENT: Roger R. Lafrenière, Esquire
Case
Management Judge
BETWEEN:
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CHIEF VICTOR YORK AND
THE LOWER NICOLA INDIAN BAND AS
REPRESENTED BY CHIEF V. YORK AND
COUNCILLOR HAROLD JOE
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Applicants
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and
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“THE COUNCIL” AS REPRESENTED BY MOLLY
TOODLICAN,
LUCINDA SEWARD,
JOANNE LAFFERTY,
MARY JANE COUTLEE,
STUART JACKSON, AND
ROBERT STERLING JR.
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Respondents
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REASONS FOR ORDER AND ORDER
Overview
[1]
In
the underlying proceeding, Chief Victor York is challenging a decision dated November
1, 2011 of “The Council” of the Lower Nicola Indian Band (LNIB Council) to
remove him from the office of Chief. The impugned decision was made by the LNIB
Council at a meeting attended by Councillors Molly Toodlican, Lucinda
Seward, Joanne Lafferty,
Mary Jane Coutlee, Stuart Jackson and Robert Sterling Jr.
[2]
The
said Councillors, who are named individually as Respondents, and the Lower Nicola
Indian Band (LNIB), have moved for an Order correcting the misjoinder and non-joinder
of the proper parties to the application for judicial review. In particular, the
Respondents seek the removal of the “Lower Nicola Indian
Band as represented by Chief V. York and Councillor Harold Joe”
as a party-Applicant, the removal of the individual Councillors as
responding parties and the substitution of the LNIB as the sole Respondent, and
consequential amendments to the Notice of Application.
[3]
Over the past few years, there have been numerous legal
proceedings brought in this Court relating to the governance of the LNIB. Various
parties, including Chief Victor York, purported to represent the Band in those
proceedings. His right to do so was not challenged in the earlier proceedings.
[4]
There is no dispute that Chief Victor York was the
political representative and spokesperson for the Council and the Band during
his tenure as Chief. While I do not question his sincere belief that he wishes
to act in the best interests of the band membership, it remains that, on the
facts of this case, Chief Victor York does not have the legal capacity to
commence the proceeding in the LNIB’s name.
[5]
If an application is
commenced in the name of a person without the authority of that person, common
sense and logic dictate that the application cannot possibly be sustained or
continued in that name. Moreover, if a person is not directly affected by the
order sought in the application, that person ought not be named personally as a
respondent.
Facts
[6]
For the purposes of the present motion, the relevant facts
can be summarized as follows.
[7]
The members of the LNIB Council who were declared elected
and took
office on October 2, 2010 under the Lower Nicola Indian
Band Custom Election Rules (Current Custom Election Rules)
were Chief Victor York, Councillor Mary June Coutlee, Councillor Stuart
Jackson, Councillor Harold Joe, Councillor Joanne Lafferty, Councillor Lucinda
Seward, Councillor Robert Sterling and Councillor Molly Toodlican. The
eligibility of certain councillors to run in the election was the subject of applications
for judicial review in Court File Nos. T-2127-10 and T-2128-10 and
remains in question.
[8]
The LNIB Council is required to schedule at least twelve
meetings per year, with never more than a one month period between meetings. Since
the most recent election, Council met regularly every Tuesday
evening in the LNIB Administration Building and
in other meetings specifically called by either the Chief or
by a quorum of Council. Quorum of the LNIB Council is five. If the Chief does not
attend the Council meeting, the Councillors appoint a chairperson. Decisions of
the LNIB Council are made by simple majority vote taken amongst the members of
Council present. The Chief and each of the Councillors each have one vote.
[9]
The
duties and obligations of the Chief and Councillors, including their tenure on
Council, are governed by the Current Custom Election Rules and by the Lower
Nicola Indian Band Chief & Council Policy & Guidelines (Current
Policy and
Guidelines). The duties of the Chief and Councillors include but are not limited
to supporting
all Council decisions passed by consensus or majority and not engaging in
activity that can reasonably be construed as misrepresenting Council.
[10]
According
to the Respondents, since December 2010, Chief Victor York consistently refused
to support, and instead undermined, the decisions made by Council
by writing letters misrepresenting Council to the LNIB membership, staff
and government, as well as to various banking and business contacts of the
LNIB. They also allege that Chief Victor York consistently failed to
attend the weekly Council meetings, to call any other Council
meetings so
as to discuss and make any decisions to protect and further
the interests of the LNIB, or to attend any of the monthly meetings with the LNIB
membership to hear the membership’s concerns.
[11]
At
the Council meeting on October 18, 2011, the Councillors who attended the
meeting concluded that Chief Victor York may have breached his Oath of Office
and his fiduciary duties to the LNIB. Council then wrote Chief
Victor York to advise him of the allegations and of the supporting evidence,
and to request that he respond to the allegations before Council on
October 25, 2011. According to the Respondents, Chief Victor York did not
respond to Council’s letter and failed to attend before Council
on October 25, 2011, as requested.
[12]
At
the Band General Meeting on November 1, 2011, Council considered Chief Victor York’s failure to respond to
the allegations against him and voted to immediately remove him from office
under section 34 of the Current Custom Election Rules. Council again wrote Chief Victor
York telling him of his impeachment and providing him with a
copy of the Band Council Resolution impeaching him. Council
directed that
this letter and the Band Council Resolution be delivered to Chief Victor York.
[13]
On November 30, 2011, Chief Victor York commenced the
present application for judicial review of the decision of Council dated November
1, 2011 removing him from his elected position.
[14]
On December 6, 2011 the LNIB Council met again and passed a Band Council
Resolution to retain Parlee McLaws LLP in order to bring an application to have
the LNIB removed as applicant, to have the six Councillors named removed as
Respondents, and to add the Lower Nicola Indian Band as the only
Respondent.
[15]
Chief Victor York acknowledged on cross-examination that
he did not have a band council resolution or band membership approval authorizing
him to bring the present application. However, he insisted that as the elected
Chief, he has the authority to represent the best interests of the LNIB and
didn’t need any approval from the LNIB Council or the band membership to bring
the present proceeding in the Band’s name.
Analysis
[16]
In the Notice of Application, Chief Victor York seeks an
order declaring the November 1, 2011 Council meeting “unlawful” because he did
not call the meeting. He also seeks an order quashing the
decision removing him from office because there was an outstanding election
appeal and, therefore, no Councillor affected by the election
appeal could be counted in the quorum or vote in favour of the impeachment
decision.
[17]
The relief requested in the application for judicial review
is clearly personal to Chief Victor York. Further, it plainly has nothing
to do with Councillor Harold Joe, who has instituted his own proceeding in
Court File No. 12-T-4. By himself, or even with the support of
Councillor Harold Joe, Chief Victor York cannot purport to
represent the LNIB.
[18]
Only
the LNIB Council can represent, make decisions, or otherwise act on behalf of the LNIB membership.
The fact that the status of certain councillors is up in the air does not
authorize Chief Victor York to usurp Council’s authority.
[19]
Chief Victor York has also improperly named the six
individuals who were present at the November 1, 2011 Council meeting resulting
in the decision removing him from office. The decision in
question was not made in favour of any individual member or members of the LNIB.
Rather, the decision was made under section 34 of the Current Policy
and Guidelines, presumably in the interest of the collective membership of the
LNIB.
[20]
The individual Councillors have no more interest in
either the decision removing Chief Victor York or the relief that Chief
Victor York seeks in his judicial review than do each and every individual
member of the LNIB. I agree with the Respondents that it is the collective membership
of the Band, that is the LNIB itself, that has a direct interest in:
a. protecting and
preserving membership’s democratic rights to elect and be represented by the
Chief and the Councillors of their choice;
b.
the efficient and proper functioning
of the Council that membership elects every three years to exercise the powers of the LNIB in the best interests of
the membership;
c.
the correct legal interpretation and
application of the Current Custom Election Rules (governing the term of office and removal from office of elected
members of Council); and
d. the
correct legal interpretation and application of the Current Policy and
Guidelines governing the procedural operation of the elected Council, the
duties of members of Council and the discipline available for breach of those
duties.
[21]
In the end, the relief that Chief Victor York seeks in his
judicial review can only directly affect the LNIB membership’s
collective interests by determining whether individuals, who the membership
voted to represent them on Council and who were declared elected by the
Electoral Officer, are proper members of Council. The relief requested in the application may also directly affect the LNIB membership’s
collective interest by determining whether only the Chief can call a valid
Council meeting, despite the Chief’s alleged failure and refusal to convene
meetings in 2011, and despite the requirements in the Current Policy and
Guidelines that
meetings be convened on a monthly basis. Further, the relief
requested could directly affect the LNIB membership’s collective interest by
determining whether Council can discipline and remove a member of
Council for breach of the duties owed to the LNIB membership.
[22]
In
the circumstances, I agree with the moving parties that the collective
membership, that is the LNIB itself, is the only proper Respondent to Chief
Victor York’s judicial review.
[23]
Being
substantially in agreement with the written representations filed on behalf of
the moving parties, which I adopt and make mine, I conclude that the relief
requested in the Notice of Motion should be granted.
Costs
[24]
The Respondents seek one set of costs as against Chief Victor
York for refusing to consent to the motion. In my view, this was a proper housekeeping
motion that should not have been opposed by the Applicants.
[25]
Counsel
for the Applicants conceded that costs of the motion should follow the event.
In the circumstances, I conclude that costs of the motion, hereby fixed in the
amount of the $750.00, inclusive of disbursements and taxes, should paid by the
Applicant, Chief Victor York, to the Respondent, the Lower Nicola Indian Band.
ORDER
THIS COURT
ORDERS that:
1.
The
Lower Nicola Indian Band, as represented by Chief V. York and Councillor Harold
Joe, shall cease to be an Applicant or a party to the within Application for
Judicial Review.
2.
Molly
Toodlican, Lucinda Seward, Joanne Lafferty, Mary June Coutlee, Stuart Jackson
and Robert Sterling Jr. shall cease to be Respondents or parties to the within
Application for Judicial Review.
3.
The
Lower Nicola Indian Band shall be joined as the sole Respondent and a party to
the within Judicial Review Application.
4.
Pursuant
to Rule 104(2), the style of cause on all future documents filed in the within
Application for Judicial Review shall be:
BETWEEN:
CHIEF
VICTOR YORK
APPLICANT
AND
THE
LOWER NICOLA INDIAN BAND
RESPONDENT
5.
Pursuant
to Rule 104(2), and within 10 days of this Order, the Applicant Chief Victor
York shall serve and file on the Respondent, The Lower Nicola Indian Band, the
Notice of Application that he filed on November 10, 2011, amended as follows
by:
(a)
using
the style of cause set out in paragraph 4 of this Order, identifying the proper
parties to this Application;
(b)
by
changing the name of the document, both on page 1 and page 6 of the Notice
filed on November 30, 2011 to:
APPLICATION UNDER SECTION 18.1 OF THE FEDERAL
COURTS ACT
AMENDED NOTICE OF APPLICATION
(c)
by
removing the words “as
represented by Molly Toodlican, Lucinda Seward, Joanne Lafferty, Mary June
Coutlee, Stuart Jackson and Robert Sterling Jr.” in the first paragraph on page
3 of the Notice filed November 30, 2011;
(d)
by
replacing the word “respondents”
with the word “Council” in the paragraph that starts with “The applicants
made…” in the middle on page 3 of the Notice filed November 30, 2011;
(e)
by
replacing the word “respondents”
with the word “Council” in subparagraph (1) on page 3 of the Notice filed
November 30, 2011;
(f)
by
replacing the word “respondents”
with the word “Councillors” in subparagraph (2) on page 3 of the Notice
filed November 30, 2011;
(g)
by
replacing the word “respondents”
with the word “council” from subparagraph (3) on page 3 of the Notice filed
November 30, 2011;
(h)
by
replacing the word “respondents”
with the word “Council” in subparagraph (4) on page 3 of the Notice filed
November 30, 2011;
(i)
by
replacing the word “respondents”
with the word “Council” in subparagraph (5) on page 3 of the Notice filed
November 30, 2011;
(j)
by
replacing the word “Respondents”
with the word “Council” in subparagraph (6) on page 4 of the Notice filed
November 30, 2011;
(k)
by
replacing the word “Respondents”
with the word “Council” in subparagraph (7) on page 4 of the Notice filed
November 30, 2011;
(l)
by
replacing the word “Respondents”
with the word “Council” in subparagraph (9) on page 4 of the Notice filed
November 30, 2011;
(m)
by
replacing the word “Respondents”
with the word “Council” in subparagraph (10) on page 4 of the Notice filed
November 30, 2011;
(n)
by
replacing the word “Respondents”
with the word “Council” in subparagraph (11) on page 4 of the Notice filed
November 30, 2011; and
(o)
replacing
the words “Respondents”
and “respondents” with the word “Council” in paragraph that starts with “The
applicant requests…” in the middle of page 4 of the Notice filed November 30,
2011.
6.
The
Lower Nicola Indian Band shall have its costs of this motion against Chief Victor
York, hereby
fixed in the amount of the $750.00, inclusive of disbursements and taxes.
“Roger
R. Lafrenière”
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