Date: 20090417
Docket: T-1910-08
Citation: 2009
FC 385
Toronto, Ontario, April 17, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
GARNET WOODHOUSE, JOHN
SANDERSON,
NORMAN WOODHOUSE and TED WOODHOUSE,
and THE PINAYMOOTANG FIRST NATION
Applicants
and
THE MINISTER OF INDIAN AFFAIRS
and NORTHERN DEVELOPMENT and the
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is a
motion by the applicants for:
1. An interim injunction prohibiting the
Minister of Indian Affairs and Northern Development (hereinafter the Minister)
from making a declaration pursuant to paragraph 78(2)(b) of the Indian Act,
R.S. 1985, c. I-5 (the Act) or a report to the Governor in Council pursuant to
section 14 of the Indian Band Election Regulations, C.R.C. c. 952 (the
Regulations). It is requested that the injunction be granted pending final
determination of the applicants’ application for judicial review;
2. An order that this motion be dealt
with on an expedited basis pursuant to Rule 385(1) of the Federal Court
Rules, 1998;
3. Costs on a solicitor and client
scale; and
4. Such further and other relief as
counsel may advise and this Honourable Court deems just.
[2]
The
applicant, Garnet Woodhouse was elected as chief of Pinaymootang First Nation
(PFN) and John Sanderson, Norman Woodhouse and Ted Woodhouse were elected as
band councillors at an election held on October 17, 2007.
[3]
The
applicants noted above are currently acting in their positions.
[4]
In
December 2007, the applicants were notified of an appeal of their election.
[5]
An
investigation was conducted and the investigator provided a copy of his report
to the Minister of Indian Affairs and Northern Development. A summarized
version of the report was provided to the applicants for their response.
[6]
The
applicants stated that they needed further information in order to file their
response.
[7]
The
applicants submitted that the respondents have refused to supply the requested
information.
[8]
As a
result, the applicants filed a notice of application seeking judicial review by
way of prohibition against the respondents.
[9]
As noted,
the applicants are seeking an interim injunction prohibiting the Minister from
taking any steps under section 78 of the Act or section 14 of the Regulations
pending determination of the prohibition application.
[10]
The
applicants stated the issues as follows:
1. Does this Honourable Court have the
jurisdiction to grant an interlocutory injunction, pending the hearing of the
application for judicial review, to prevent the Minister of the Department of
Indian Affairs and Northern Development from declaring an office of Chief
and/or Council of the PFN to be vacant?
2. If so, should an interlocutory
injunction be granted in this case?
[11]
The
respondents raise as a preliminary point that the motion for an injunction is
premature as the process is still ongoing. No decision has been made on the
appeal.
[12]
The
respondents further submit that in any event, the statutory process should be
allowed to run its course. The respondents state in paragraphs 30 and 31 of
their memorandum of fact and law:
30. However, even if it is
determined that Minister was acting as a “federal board, commission or
tribunal”, the statutory process should be allowed to run its course. This
principle was enunciated in the Supreme Court decision in Canadian Pacific
Ltd. v. Matsqui Indian Band, and summarized in Turnbull et al. v.
Canadian Institute of Actuaries et al., [1995] M.J. No. 424 (C.A.) where
the court stated that, save for exceptional circumstances, the administrative process
should be allowed to run its course. This is to avoid bifurcated proceedings
with the attendant further delay, proceedings that may be redundant or
unnecessary, and to give the tribunal an opportunity to correct its own error.
Canadian Pacific Ltd. v.
Matsqui Indian Band, [1995] 1 S.C.R. 3
Turnbull et al. v.
Canadian Institute of Actuaries et al., [1995] M.J. No. 424 C.A.
See also: Sczczecka v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 934
31. The court in Ontario College
of Art et al. v. Human Rights Commission (Ontario) also took this approach. It held that
an application for judicial review involving allegations of bias and delay was
premature since the administrative proceedings had not been concluded.
[13]
The applicants
submitted for my consideration the decisions in Gull Bay First Nation v. Canada (Attorney General), [2005] F.C.J. No. 1332 and Ross
v. Canada (Indian and Northern Affairs), [2007] F.C.J. No. 675. A
review of these cases discloses that an actual decision had been made in these
cases. In the present case, the process is still ongoing as the Minister has
not made a decision.
[14]
I have
reviewed the decisions cited by the respondents and I am of the view that the
motion for an interim injunction is premature as the statutory process is still
ongoing. To grant an interim injunction at this stage of the process would
result in bifurcating the proceedings. The ruling also gives the tribunal an
opportunity to correct any errors it may have made.
[15]
However,
having concluded that the motion for an interim injunction is premature, I would
direct the parties to the words of Mr. Justice Lemieux in Gull Bay First
Nation above, at paragraphs 25, 26 and 27:
25. This Court has already held in Morin
v. Canada (Minsiter of Indian and
Northern Affairs),
[1998] F.C.J. No. 82 that the non-disclosure of an investigator’s report
leading to the setting aside of a Band election violates the principles of
fairness.
26. For other examples of the
requirements of fairness in terms of ineligibility findings to stand to the
office of a councillor to a Band election see Sound v. Swan River First
Nation, [2002] F.C.J. No. 790, 2002 FCT 602; Duncan v. Behdzi Ahda First
Nation Band (Council), [2002] F.C.J. No. 764, 2002 FCT 581; Samson
Indian Band v. Bruno, 2005 FC 1140 and Frank v. Bottle, [1993]
F.C.J. No. 670.
27. In the human rights context it
has been held fairness requires an investigator’s report be disclosed before
the Canadian Human Rights Commission decides a complain. See Radulesco v.
Canada (Human Rights Commission), [1984] 2 S.C.R. 407 and an investigation
of a complaint must be thorough see, Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574.
[16]
The motion
for an interim injunction is dismissed with costs to the respondents.
[17]
Because of
my finding, I need not deal with the other issues.
[18]
At the
hearing of this motion, the parties agreed that the applicants would have seven
days from the receipt of this order to file their responses to the
investigation report and the recommendation to the Minister would not be made
until after this period of time.
ORDER
IT IS ORDERED that:
1. The
applicants’ motion for an interim injunction is dismissed with costs to the
respondents.
2. The
applicants shall have seven days from the date of receipt of this order to file
their responses to the investigation report and the recommendation to the
Minister would not be made until after this period of time.
3. If
paragraph 2 of the order does not state the agreement of the parties, I retain
jurisdiction to amend the order.
“John
A. O’Keefe”
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