Date: 20090312
Docket: T-345-09
Citation: 2009 FC 257
BETWEEN:
STANLEY LAURENT ON HIS
OWN BEHALF AND MEMBERS OF
THE FORT MCKAY FIRST NATION
Applicant
and
THE FORT MCKAY FIRST NATION,
CHARLES STRAHL, THE MINISTER OF INDIAN
AND NORTHERN AFFAIRS CANADA,
RAYMOND POWDER, MIKE ORR,
CECILIA FITZPATRICK AND
DAVID BOUCHIER
Respondents
REASONS FOR ORDER
(Dictated from the Bench,
reserving the right to correct grammatical or clerical errors)
HARRINGTON J.
[1]
Tomorrow,
March 13, 2009, a referendum is scheduled to take place on the following
question:
Do you agree that the Fort McKay First
Nation Election Code (dated December 22, 2004) has been a recognized customary
election law since February 8, 2005?
This initiative was taken by the Council
of Elders.
[2]
Mr. Stanley
Laurent on his own behalf, and on behalf of other members of the Fort McKay
First Nation, has brought on a motion, to be decided today on an urgent basis, for
an injunction enjoining the “Fort McKay First Nation’s Administration” from
holding said referendum. These are the reasons why I am dismissing his motion.
BACKGROUND
[3]
The event
which precipitated this motion was the refusal of the Returning Officer of the
Fort McKay First Nation to accept Mr. Laurent’s nomination papers in his bid to
be elected chief in an election scheduled for 25 February 2008. She rejected
his papers because he was ineligible to run for election in accordance with the
Fort McKay First Nation Election Code dated 22 December 2004, which among other
things, required that a candidate for office be a “life long member” of the
First Nation, which meant that the candidate must have been born to a member.
Mr. Laurent did not meet that qualification.
[4]
Mr.
Laurent sought a judicial review of that decision in Stanley Laurent v. Pauline
Gauthier and the Fort McKay First Nation, docket number T-396-08. Since he
was clearly ineligible to run for office in accordance with the Code itself, he
also had to attack its legitimacy. On 24 February 2009, Mr. Justice Campbell
ordered (2009 FC 196):
For the reasons provided, pursuant
to s. 18.1 (3) (b) of the Federal Courts Act, I declare that the Fort
McKay First Nation Election Code dated December 22, 2004 is invalid. As a
result, I further declare that, for want of jurisdiction, Ms. Gauthier’s
decision of February 11, 2008 rejecting the nomination of Mr. Laurent and
acclaiming Mr. Boucher as Chief of the Fort McKay First Nation is invalid.
[5]
An appeal
from that decision has been launched by the Fort McKay First Nation, docket
A-102-09. An appeal to the Federal Court of Appeal does not stay the full force
and effect of an order of this Court. The First Nation is entitled to seek a
stay from the Federal Court of Appeal in accordance with Rule 398 of the Federal
Courts Rules. They have filed such a motion which has yet to be heard, much
less adjudicated upon.
[6]
Quite
apart from Mr. Laurent’s situation, great concern has been expressed by various
members of the Band as to the effect of Mr. Justice Campbell’s decision on
business carried out by the Band since the Code had been promulgated in
February 2005. There are various contracts in place with third parties, people
hired, moneys disbursed, moneys owing and moneys to be received.
[7]
No motion
has been made under Rule 397 requesting the Court, as constituted at the time
of the order, to reconsider on the grounds that matters which should have been
dealt with were overlooked or accidentally omitted.
[8]
I do not
take the proposed referendum as being a collateral attack on the order of Mr.
Justice Campbell. It certainly cannot be taken as retroactively ratifying the decision
of the Returning Officer to reject Mr. Laurent’s nomination papers.
[9]
Depending
on the result, the referendum may have the effect of allowing the Band to move
forward, and to soothe concerns with respect to the validity of matters carried
out by the Band through its Chief and Councillors since the Code had
purportedly come into force on 8 February 2005.
[10]
In the
underlying judicial review in this case, Mr. Laurent not only seeks relief in
the nature of an injunction to prevent a referendum, but also a declaration
that the Chief and Council, or the Administration, and Council of Elders are
without authority and jurisdiction, are in office unlawfully and are making
decisions without authority. However he only seeks to have decisions made from 24
February 24 2009, the date of Mr. Justice Campbell’s decision, quashed. He also
seeks the appointment of a Receiver Manager to assume control over all
operations of the First Nation and its affiliated groups of companies, and an
order requiring the First Nation to hold a new election.
MR. JUSTICE CAMPBELL’S DECISION
[11]
The basis
of Mr. Justice Campbell’s decision is that the Code under which the Returning
Officer rejected Mr. Laurent’s nomination papers had not been properly approved
by the members of the Fort McKay First Nation. It seems that before the Code
came into place in February 2005, Mr. Laurent was eligible to run for office.
In fact he did run successfully as a Councillor and unsuccessfully for Chief.
[12]
Although
Mr. Laurent had argued that his equality rights under s. 15 of the Charter had
been offended by his rejection as a candidate, Mr. Justice Campbell did not
address that argument as a result of his finding on the jurisdiction issue.
[13]
The
problem facing Mr. Justice Campbell was the number of electors required to put
the Code in place. He did not deal with the legality of the provisions thereof.
The Notice of Referendum provided that the Code would be of full force and
effect as of the date it was approved by the electors at a special meeting at
which at least 50 per cent of the electors were in attendance. This would mean
a double majority, with at least 25 per cent of eligible electors voting in
favour. As it was, only 44 per cent of the eligible electors voted. Of those,
56.6 per cent voted in favour, but as a total of all electors only 24.86 per
cent approved the code. The Code under discussion did not include this double
majority provision. Mr. Justice Campbell noticed the discrepancy between the
Notice and the Code and held the whole process was flawed. The misleading
information could well have affected the attendance at the referendum meeting.
Indeed, Mr. Laurent, who opposes the Code, did not vote in an effort to keep a
majority of the First Nation from attending the ratification vote meeting. His
failure to attend constituted a negative vote.
[14]
I am in no
way persuaded that the effect of Mr. Justice Campbell’s order is that the
Elders cannot put in process a referendum which might have the effect of resolving
issues other than the decision of the returning officer to reject Mr. Laurent’s
nomination papers. The Code under attack does not deal with the authority of
Elders.
[15]
I am not
prepared to speculate as to what the outcome of the referendum will be, or its
effect. The “NOs” may have the majority, or the “YAYs” may have a single
majority, or a double majority.
INTERLOCUTORY INJUNCTIONS
[16]
The
leading case is R.J.R.-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. It is
well accepted that there is a tri-partite test: serious issue, irreparable harm
and balance of inconvenience.
[17]
I am
prepared to assume that the motion is serious in that it is neither vexatious
nor frivolous. It is not necessary to determine whether Mr. Laurent has suffered
irreparable harm, although I do note that all he lost was an opportunity to run
for office. In my view this motion turns on balance of inconvenience. In R.J.R.-MacDonald,
above, the Court referred to its earlier decision in Manitoba (Attorney General) v.
Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 as follows:
Metropolitan Stores adopted a three-stage test for courts to
apply when considering an application for either a stay or an interlocutory
injunction. First, a preliminary assessment must be made of the merits of
the case to ensure that there is a serious question to be tried.
Secondly, it must be determined whether the applicant would suffer irreparable
harm if the application were refused. Finally, an assessment must be made
as to which of the parties would suffer greater harm from the granting or
refusal of the remedy pending a decision on the merits. It may be helpful
to consider each aspect of the test and then apply it to the facts presented in
these cases.
[18]
It is my
view that the Band will suffer far greater harm from the granting of the
requested injunction than would Mr. Laurent, and whoever is with him, should
the injunction not be granted. If they think that the Code is a bad idea, they
have the right to go out and vote “no”.
[19]
As to another
aspect of this motion, which is for an order to have Ackroyd LLP removed as
solicitors of record for the respondent Fort McKay First Nation, I am
adjourning same. It would be completely inappropriate to deprive some members
of the Band a legal voice on this motion. It would be impossible for those
members to appoint and instruct new counsel so as to be in position to make
meaningful representations. Furthermore it may behove the applicant to develop
a much better record on this point.
[20]
Although
Mr. Laurent seeks an order for the appointment of a Receiver Manager, he does
not seek that order today.
[21]
It is
obvious to me that this proceeding begs for special management pursuant to Rule
384. The case manager(s) to be appointed by the Chief Justice pursuant to Rule
383 may deal with such matters as an expedited hearing on the merits, the
possible appointment of Receiver Managers, the motion to remove Ackroyd LLP as
solicitors of record for the Fort McKay First Nation, as well as the aftermath
of the referendum.
“Sean Harrington”
Ottawa,
Ontario
March
12, 2009
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