Date: 20070222
Docket: T-209-07
Citation: 2007
FC 202
Ottawa, Ontario, February 22, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
WINSTON WEEKUSK SR., in his
capacity as Chief,
DARRYLE WEEKUSK, in his capacity as
Councillor,
HAROLD JIMMY, in his capacity as
Councillor,
WILTON ANGUS, in his capacity as
Councillor,
ISABELLE HORSE, in her capacity as
Councillor,
ABSOLOM STANDINGWATER, in his capacity as
Councillor,
LEO PADDY, in his capacity as Councillor,
and
MEL THUNDERCHILD, in his capacity as
Councillor
Applicants
and
APPEAL TRIBUNAL OF THE
THUNDERCHILD
FIRST NATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Court is seized with an application for an interlocutory
order pursuant to section 18.2 of the Federal Court Act, R.S.C. 1985, c.
F-7 to stay the ruling of the Appeal Tribunal of the Thunderchild First Nation
(the respondent, or Appeal Tribunal) quashing
the October 16, 2006 elections whereby one of the applicants, Winston Weekusk
Sr., was elected as Chief, and the other applicants as Councillors
(collectively, the applicants) and ordering
a new general election in its place.
[2]
The most relevant facts relating to the present matter are as
follows.
[3]
Thunderchild First Nation is an Indian Band under the Indian
Act, R.S.C. 1985 c. I-05 and conducts its elections for Chief and Council
under the Band Custom method as contained in the Thunderchild First Nation
Constitution (the constitution) and the Thunderchild First Nation Election
Act (the Act).
[4]
The Appeal Tribunal is the body designated to deal with appeals
under the Act and accordingly has specific powers as provided by the Act and
the constitution.
[5]
Thunderchild First Nation (the Band) held an election on October
16, 2006 pursuant to the Act. Winston Weekusk Sr. was elected Chief and the
other applicants were elected as Councillors, all for four-year terms.
[6]
Appeals of this October 2006 election were filed with the Appeal
Tribunal in mid-November 2006, complaining of irregularities in the conduct of
the elections. Among these appeals, it was maintained that the Chief Electoral
Officer, Lyndon Linklater, removed ballot boxes
from the polling station to another room without the requisite witnesses, and
returned with the boxes opened, thus rendering the election void.
[7]
The appeal hearing was conducted over two days. On January 16,
2007, the respondent heard from the three individuals who had instigated the
appeals, followed by the testimony of the two Deputy Electoral Officers on
January 18, 2007. The Chief Electoral Officer, Mr. Linklater, refused to
testify regarding the events surrounding the October 16, 2006 election despite
having been summoned to do so by the respondent.
[8]
At the appeal hearing, one of the Deputy Electoral Officers
testified that Mr. Linklater had removed the ballot boxes to another room, out
of the presence of the candidates and their representatives, and returned with
the boxes opened.
[9]
The respondent concluded that Mr. Linklater had violated section
8.01 of the Act regarding vote counting. Consequently, the respondent set aside
the October 2006 election, a new election was called for March 26, 2007, and
new electoral officials were appointed.
[10]
An election notice was posted and sent to electors, and on
February 12, 2007 nominations for the March 26, 2007 election were held. With
the exception of Winston Weekusk Sr., Darryle Weekusk and Absolom Standingwater,
who did not seek nomination, the remainder of the applicants sought and
obtained nominations. The Band has demonstrated its support for the new
election through its participation in the nomination process.
[11]
It is well-recognized that the test to be applied in considering
whether an injunction is appropriate is the three-stage test articulated by the
Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311 with regard to a serious issue, irreparable harm and a
balance of convenience assessment. The failure to establish any one of these
three criteria is fatal to the present application. I will deal with the
irreparable harm first because it is, in
my view, conclusive of the present matter.
Irreparable Harm
[12]
The applicants submit that they were duly elected on October 16,
2006, and that as a result of the respondent’s decision which is under attack,
they will forfeit their elected positions and may not regain them in the new
March 26, 2007 election. In their view, this constitutes an irreparable harm if
an injunction is not granted. The applicants also submit that the respondent’s
decision tarnishes their honour and reputation, and erodes their mandate to
govern the Band.
[13]
The applicants rely on the decision of this Court in Gabriel
v. Mohawk Council of Kanesatake, [2002] F.C.J. No. 635 (QL), 2002 FCT 483,
that the office of Chief is political and that a loss of such a position cannot
be quantified monetarily, due to its prestige and the fact that the law of
wrongful dismissal does not provide remedies for loss of elective office (Gabriel,
above, at paras. 26, 28 citing Frank v. Bottle et al (1993), 65 F.T.R.
89).
[14]
The circumstances of this case distinguish it from those in Gabriel,
above. In that matter, the Chief had already been in office for six
months of a two-year term, when he was extraordinarily removed from office, in
a manner that directly affected his honour and reputation. Furthermore, Mr.
Gabriel had been Grand Chief for over five years, and had been so elected three
times. In the present case, the applicants were newly elected for a four-year
term, and were essentially removed through a disqualification of the electoral
process. This is an essential distinction between the two matters.
[15]
I am persuaded by McIvor v. Canada (Attorney General),
[2006] F.C.J. No. 1484 (QL), 2006 FC 1187 at paragraph 9, where my colleague
Justice Barry Strayer held that a proceeding nullifying an election due to irregularities
in the election process is based on the protection of the integrity of the
election system, and does not particularly affect the reputations of those
elected in that process. Other jurisprudence of this Court dealing with similar
circumstances has held that loss of office does not in itself constitute
irreparable harm (see Weatherill v. Canada (Attorney-General) (1998), 143 F.T.R. 302; Cimon v. Canada (Minister
of Indian Affairs and Northern Development), [1999] F.C.J. No. 1736 (QL)).
[16]
In the present case the appeal under attack dealt with the
election process itself and not the applicants per se, and does not
particularly effect the applicants’ reputations or any potential future mandate
for governance. I am not convinced of irreparable harm in this regard.
[17]
In this case, as in McIvor, the new election is scheduled
soon after the date this order will issue. Also similarly to McIvor, the
evidence is that in the meantime a nomination meeting has been held for
candidates for these elections, and several of the applicants have been so
nominated. It is significant to note that all the applicants had the
opportunity to do so. Mr. Weekusk and two of the other applicants chose not to
seek nominations in the new elections, and bear the consequences accordingly.
[18]
I am of
the view that given the proximity of the new elections, and the
possibility for all of the applicants to have sought nomination for the March
2007 election, they all had the opportunity to assume office again if they
continued to enjoy the support of the Band members.
[19]
The applicants submit that irreparable harm will ensue if the
injunction is not granted as some of them will, and others may, forfeit their
elected positions. However, in my view the reverse is equally true. I agree
with Justice Max Teitelbaum’s holding in Cimon, above, at paragraph 9
that “[i]f the Judicial Review was denied, the First Nation would have been led
by an illegal Chief & Council …”.
[20]
In consideration of all of the circumstances, I am not convinced
that the applicants would suffer irreparable harm if the present injunction is
not granted.
[21]
Furthermore, I note that significant
preparations have been completed with regard to the March 26, 2007 election and
the evidence suggests that Band members have demonstrated support for it. The
election has been initiated, the electoral process is underway and it involves the
entire community. In my estimation, the balance of convenience favours
allowing the electoral proceedings to run their course in the circumstances of
this matter.
[22]
For these reasons, I dismiss the motion
for an interim stay of the Appeal Tribunal decision, with costs.
ORDER
THIS COURT ORDERS that
The motion for an interim stay of the Appeal
Tribunal decision is dismissed with costs.
“Danièle
Tremblay-Lamer”
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