October 14, 2008, the Applicants are
seeking a number of remedies related to these matters, including:
·
a
writ of quo warranto with respect to the payment, on or about September
11, 2008, September 16, 2008 and subsequent unknown dates, of certain SRFN
funds to Chief Martselos and others;
·
an
order quashing a Band Council Resolution (BCR) passed by the Respondent SRFN
Council on September 10, 2008, which BCR purportedly authorized the payment of
certain SRFN funds to Chief Martselos and others; and
·
an
injunction restraining Chief Martselos or her lawyers from receiving, handling
or disbursing certain SRFN funds.
[2]
In
this motion, brought in writing pursuant to Rule 369 of the Federal Courts
Rules, the Applicants seek the following:
1.
A
direction that quo warranto is properly claimed in the Application;
2.
An
Order, pursuant to Rule 318, that the Respondents forward to the Registry and
the Applicants a certified copy of the following material:
All records from August 25, 2008 to date
pertaining to, relevant to or connected with the payment or transfers of SRFN
funds evidenced by the following cheques to the ultimate recipients of such
funds or any part thereof: SRFN cheque #2206 dated September 11, 2008 in the
amount of $74,332.14; SRFN cheque #2258 dated September 16, 2008 in the amount
of $526,834.38; and SRFN cheque #2375 dated September 26, 2008 in the amount of
$1,000,000; including all correspondent to and from the SRFN and/or SRFN
lawyers with respect to such payments, and all trust ledgers and file notes or
records of Parlee McLaws LLP with respect to such payments.
3.
An
Order, pursuant to s. 18.1(2) of the Federal Courts Act, extending the
time for filing the Notice of Application to October 14, 2008;
4.
A
direction, pursuant to Rule 304(1) permitting the Applicants to serve their
Notice of Application on November 6, 2008; and
5.
Leave
to file the affidavits of Chris Bird, Mike Beaver and Delphine Beaulieu in support
of their Application beyond the 30-day time limit provided for in Rule 306.
[3]
In
the reasons that follow, I will briefly outline the background to the
Application and this Motion and then deal with each of the motion requests.
I. Background
[4]
Frieda
Martselos was elected into the position of Band Chief on August 25, 2008. On August
26, 2008, the Council of the SRFN met and voted (four to three) to have the
Chief run the day-to-day operation of the Band Office, and to have a special
meeting of the membership of the SRFN.
[5]
On
September
9, 2008,
the Special Membership Meeting was held. According to the affidavits submitted
by the Respondents, at least 55 members were present at the meeting. Quorum is
40 plus one.
[6]
Several
motions were passed by the members present. In particular, one stated that the
SRFN would fully reimburse Chief Martselos for her legal and all other costs
and expenses incurred by her to take the court actions that had been necessary
as to be reinstated as Chief of the SRFN Council and her lost wages as Chief
during her suspension from May 1, 2007 to August 25, 2008. The motion also
provided that the SRFN would develop compensation packages for individuals who
had spent funds in the court and also to determine whether one of the former Chiefs
was paid his wages as an elected Chief for his term.
[7]
On
September 10, 2008, the Council of the SRFN met and passed a band council
resolution (BCR) that all motions passed and adopted at the Special Membership
Meeting were accepted and adopted by the Chief and Council as Resolutions of
the Council of the SRFN. Chief Martselos and Councillors Brad Laviolette and
Gloria Laviolette participated at this meeting, voting in favour of the
resolution, which passed by four (or five) votes to two.
[8]
Following
the resolution, three sets of withdrawals were made from a SRFN account at the
Bank of Montreal by way of cheques:
1.
September
11, 2008
– $74, 332.14 was transferred or paid to Chief Martselos;
2.
September
16, 2008 - $526,834.38 was transferred or paid to Chief Martselos; and
3.
September
26, 2008 - $1,000,000 was transferred to Chief Martselos’ lawyers, Parlee
McLaws LLP.
[9]
The
Applicants allege that no specific authority for such payments was given by the
SRFN Council. They allege that the monies in question have gone to Chief
Martselos and to 10 other SRFN members, whose identities the Respondents have
refused to disclose. The Applicants suspect that some of the recipients include
those who made the motion at the September 9, 2008 Special Membership Meeting to
establish the compensation program.
[10]
In
an SRFN Band Council meeting held on November 25, 2008, the first two of the
three challenged payments were discussed by members of Council. It was
subsequently ratified by a quorum of disinterested members of Council at a duly
convened Council meeting held on November 25, 2008. Chief Martselos did not
participate in the vote to ratify.
II. Analysis
A. Quo warranto
[11]
The
Applicants seek a direction of this Court that quo warranto is properly
claimed in the Application.
[12]
As
I understand the Application and the materials filed by the Applicants in this
motion, the real issue is whether the Respondents had the authority to discuss,
vote on and pass a resolution that potentially allowed them and their family
members to receive SRFN funds. The decision being challenged is the one that
was made on September 10, 2008 to pass a resolution that adopted all the
motions that were passed and adopted at the Special Membership Meeting,
including the motion to compensate SRFN individuals for their court costs in
various proceedings before this Court and Chief Martselos for her lost wages.
Although, in their submissions, the Applicants focus on three specific payments
made by way of cheque to Chief Martselos and Parlee McLaws following the
passing of the September 10, 2008 BCR, the judicial review seeks to quash any
and all payments made by virtue of this resolution.
[13]
In
my view, the writ of quo warranto is not properly claimed in this
motion. The quo warranto remedy is available to challenge the right of a
public official to hold the office (See Balfour v. Norway
House Cree Nation, 2006 FC 213, [2006] 4 F.C.R. 404
at para. 21, Salt River First Nation 195 (Council)
v. Salt River
First Nation 195, 2003 FCA 385, 312 N.R.
385 at para. 20). There is also jurisprudence that states that the
remedy of quo warranto does not extend to cases of alleged illegalities
or alleged abuses committed by the public office holder in connection with his
or her functions (Re Bruce et al. and Reynatt et al., [1979] 2 F.C. 697,
104 D.L.R. (3d) 11 (F.C.T.D.) at para. 14).
[14]
Justice
Walsh also stated in Re Bruce, above, that the remedy is, above all,
discretionary and that it would not be available if the relief sought could be
obtained through alternative remedies such as mandamus or an injunction. In
this case and as is sought by the Applicants in their Application as an
additional remedy, an injunction may be available and appropriate. If indeed
the resolution was improperly passed on September 10, 2008, then an injunction
can be issued to prevent future payments from SRFN funds and monies already
lost can be recovered by way of a claim for damages. The Applicants’ only
attempt to respond to this point is that quo warranto is preferable
because it prevents the SRFN Council from passing any future BCRs allowing
similar payments to the recipients. In my view, this is not a sufficient
justification for widely expanding the parameters of the quo warranto
remedy.
[15]
I
also reject the Applicants’ argument that the present case is analogous to The Queen v.
Wheeler,
[1979] 2 S.C.R. 650, in which case the Supreme Court of Canada granted quo
warranto. Although that case also dealt with a situation of a conflict of
interest, the main issue was the eligibility of an official to be elected or to
continue to hold his office. The present case is distinguishable in that it
focuses on alleged abuses committed by SRFN Councillors who properly (at least
for the purposes of this Application) hold office. As such, quo warranto
is not available in the same way as was used in Wheeler, above.
[16]
On
a related note, I observe that a differently constituted meeting of
disinterested members of the SRFN Council on November 25, 2008 ratified the
intended purpose of two of the challenged payments. The Applicants submit that
the November 25, 2008 ratification of the September 10, 2008 BCR was also
likely arrived at without legal authority and that it should be considered
under the present Application. The decisions made at the November 25, 2008
meeting would, in my opinion, constitute a separate order or decision. As set
out in Rule 302, “an application for judicial review shall be limited to a
single order in respect of which relief is sought.” The Applicants should not
be permitted to include, as part of their original Notice of Application, any
and all subsequent actions made by the SRFN Council or attempt to circumvent
Rule 302 by characterizing their requested remedy as a writ of quo warranto.
[17]
In
sum, I am not persuaded that the Applicants have raised facts upon which a
remedy of quo warranto is available.
B. Rule 317 Request
[18]
Presumably
relying on Rule 317, the Applicants have requested copies of certain records
(listed above) within the possession of the Respondents. In this Motion, the
Applicants request that, pursuant to Rule 318, I order the Respondents to
provide certified copies of those records.
[19]
The
Respondents have agreed to provide the names of those persons who benefited
from the compensation program, if the affected persons consent. However, the
Respondents object to providing anything further. I agree with the Respondents,
except that I do not believe that the consent of the beneficiaries is required.
[20]
The
Applicants’ main concern in their judicial review application is whether
certain individuals have illegitimately received SRFN Band funds. The source of
their concern stems from the September 10, 2008 Council meeting where the
Council passed a BCR adopting all motions that were approved at the September
9, 2008 membership meeting. Those motions allowed for reimbursement for court
fees and lost wages to Chief Martselos and others. The Applicants claim that,
by virtue of a conflict of interest, certain individuals who benefited from the
resolution should not have been able to vote in favour of the resolution on
September 10, 2008. As such, they submit, the resolution is without legal
authority.
[21]
Based
on this characterization of the Application, I fail to see why documents pre‑September
10, 2008 or post-September 10, 2008 relating to the payments by way of the two
cheques to Chief Martselos would be relevant to the main conflict of interest
issue. It has already been established that those cheques were made in order to
reimburse the Chief for her court fees in getting reinstated as Chief and her
lost wages. Insofar as we know that she was the recipient of the payments for
the identified two purposes, the other documents relating to these payments are
irrelevant.
[22]
Similarly,
I share the Respondents’ concerns with respect to the documents relating to the
payment to the law firm. The key issue is whether certain Councillors were
conflicted out of voting in favour of the compensation program. To determine
whether there is a conflict of interest, the only necessary information from
that which has been requested by the Applicants is material that identifies
whether certain individuals did indeed receive a benefit flowing from the
resolution and subsequent payment to the law firm. Thus, apart from an
accounting of the names of those persons who benefited from the compensation
program—information which the Respondents are apparently prepared to provide—I
would reject the Applicants’ request under Rule 317 and decline to make an
Order as requested.
[23]
I
am not persuaded that the consent of the beneficiaries of the compensation
program need be obtained before release of their names for purposes of this
judicial review. To permit some persons to refuse to disclose their names would
create a situation where the substance of the judicial review – that is, whether
certain councillors voted in the presence of a conflict of interest – could not
be determined.
[24]
In
sum, I am prepared to order only that the Respondents provide to the Applicants
a list of the names of those individuals who received funds pursuant to the
September 10, 2008 resolution.
C. Extension of Time to file
Notice of Application
[25]
The
Applicants filed their Notice of Application on October 14,
2008.
They seek a four-day extension of the 30-day period allowed for their judicial
review application in respect of the September 10, 2008 decision.
[26]
In
order to justify an extension of time, the Applicants must satisfy the test set
out in Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 at
pages 399-400 by showing: 1) a continuing intention to pursue his or her
application; 2) that the application has some merit; 3) that no prejudice to
the respondent arises from the delay; and, 4) that a reasonable explanation for
the delay exists. (See also Peace Hills Trust Co. v. Saulteaux First Nation,
2005 FC 1364, 281 F.T.R. 201 at para. 52).
[27]
Applying
these factors to the case before me, I first observe that there is an arguable
case as to the existence of a conflict of interest that might invalidate the
Council’s actions on September 10, 2008. This is relevant to the Applicants’
application for declaratory relief, certiorari and an injunction. Second, the
Respondents do not seem to have suffered any prejudice arising from the
four-day delay. Third, the Applicants have provided a reasonable explanation for
the delay; specifically, they were unable to commence the action until they
received copies of the minutes of the membership meeting of September 9, 2008,
which minutes set out the details of the resolution that was passed on
September 10, 2008. These factors sufficiently justify the granting of an
extension.
[28]
In
the circumstances, I am persuaded that an extension of time should be granted.
D. Service of Notice of
Application
[29]
Rule
304 of the Federal Courts Rules provides that a Notice of Application is to be
served on all respondents within 10 days after the issuance of a notice of
application. In this case, there was some irregularity in the service of the
Notice.
[30]
Having
reviewed the circumstances of the service and upon being satisfied that there
is no prejudice to the Respondents, I am prepared to direct that
service of the Notice of Application has been effected in accordance with the
Rules.
E. Filing of Further Affidavits
[31]
In
support of their Application, the Applicants have prepared affidavits of Chris
Bird, Mike Beaver and Delphine Beaulieu. The Applicants submit
that, while the affidavits were served within the 30-day limit, problems were
encountered in filing them with the Court within the 30-day limit. Iolanda
Organ, a legal assistant for the Applicants’ counsel, seems to take
responsibility for this lapse.
[32]
Having
reviewed the circumstances and noting that the Respondents do not object to the
late filing, I am prepared to permit the late filing of the affidavits.
III. Conclusion
[33]
In
summary, I conclude that the Motion should be disposed of as follows:
1.
The
Court declines to direct that quo warranto is properly claimed in the
Application for Judicial Review;
2.
The
Respondents will be ordered to provide, within ten days of this Order, a list
of those persons who have received compensation payments under the compensation
scheme approved at the Special Membership Meeting held on September 9, 2008 and
as subsequently approved by BCR on September 10, 2008;
3.
No
other records requested by the Applicants are required to be provided to the
Respondents;
4.
An
extension of time, to October 14, 2008, for filing of the
Notice of Application will be granted;
5.
An
extension of time, to November 6, 2008, for the serving of the
Notice of Application will be granted;
6.
Leave
will be granted to file the affidavits of Chris Bird, Mike Beaver and Delphine
Beaulieu. The affidavits are to be served and filed within thirty (30) days of
the date of these Reasons for Order and Order.
[34]
The
parties should now be able to carry on with the substance of the Application.
Once the Applicants have served and filed their affidavits, it is expected that
the parties will adhere to all further time limits established by the Federal
Courts Rules.
[35]
In
light of the mixed success on this motion, I will exercise my discretion and
decline to award costs of this motion to either party. Each party will bear its
own costs.
ORDER
THIS
COURT ORDERS that:
1.
The
Respondents are to provide, within ten days of this Order, a list of those
persons who have received compensation payments under the compensation scheme
approved at the Special Membership Meeting held on September 9, 2008 and as
subsequently approved by BCR on September 10, 2008;
2.
No
other records requested by the Applicants are required to be provided to the
Respondents;
3.
An
extension of time, to October 14, 2008, for filing of the
Notice of Application is granted;
4.
An
extension of time, to November 6, 2008, for the serving of the
Notice of Application is granted;
5.
Leave
is granted to file the affidavits of Chris Bird, Mike Beaver and Delphine
Beaulieu; such affidavits and any other Applicants’ affidavits are to be served
and filed within thirty (30) days of the date of this Order;
6.
Subsequent
to the filing of the Applicants’ affidavits, all relevant time requirements set
out in the Federal Courts Rules are to be observed; and
7.
Each
party will bear its own costs of this motion.
“Judith
A. Snider”
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