Date: 20070607
Docket: T-809-07
Citation: 2007
FC 613
Calgary, Alberta,
June 7, 2007
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
FRIEDA MARTSELOS
Applicants
- and
-
SALT RIVER
FIRST NATION #195 also known as SALT RIVER INDIAN BAND #759,
SALT
RIVER FIRST NATION COUNCIL and COUNCILLORS
CHRIS BIRD, TONI
HERON,
SONNY MCDONALD and MIKE BEAVER
Respondents
REASONS FOR ORDER AND ORDER
[1]
By this motion the Applicant seeks the following relief:
1. an Order for an
interlocutory injunction enjoining and
prohibiting
the holding of any by-election for Chief of the
Salt River
First Nation #195 (“SRFN”) pending the
determination
of Martselos’ application for judicial review
of the SRFN’s
May 7, 2007 Band Council Resolution
purporting to
remove Martselos as Chief; and
2.
an Order appointing a Case Management Judge to deal with
all matters
arising prior to trial or the hearing of this
application.
Background
Facts
[2]
The Applicant was duly elected Chief of the Salt River
First Nation (“SRFN”) on a by-election held on April 30, 2007 pursuant to the
SRFN Customary Election Regulations (the “Regulations”). The election results
were not challenged.
[3]
On May 7, 2007, four Councilors of the SRFN passed a Band Council
Resolution purporting to remove the Applicant from the office of Chief of the
SRFN (the “Resolution”). The Resolution essentially charged the Applicant with
engaging in conduct contrary to the customs, constitution and orderly
administration of the SRFN. The resolution listed 21 different incidents
involving the Applicant which Council considered grounds for removal form
Office within the provisions of s. 19.1 of the regulations.
[4]
On May 16, 2007 the Applicant filed an application for judicial review challenging
the legality of the resolution, seeking, inter alia, an order quashing
the resolution and a declaration that the Applicant is the Chief of the SRFN.
The application was made on the following stated grounds:
1. The Applicant was declared
elected Chief of the SRFN on
April 30, 2007;
and, pursuant to section 3.4 of the
Customary Election Regulations of
SRFN immediately took office as Chief;
2.
The Respondents breached their duty of procedural fairness owed to the
Applicant by failing to give her notice that the meeting of May 7, 2007, where
the BCR [Band Council Resolution] was passed could result in her removal from
office as Chief, and in failing to give her an adequate opportunity to defend
herself;
3.
The meeting was not, in any event, duly convened, particulars of which
include: notice of the meeting was not given to the Applicant or to all
members of Council; and, the Applicant and all members of Council did not waive
notice of the meeting; the Applicant did not prepare an Agenda in advance of
the meeting, and the Applicant must prepare and distribute an Agenda in advance
of each meeting to each member of council;
4.
The Respondents did not have jurisdiction under the Customary Election
Regulations of SRFN to remove the Applicant from office on the grounds stated
in the BCR;
5.
The grounds stated in the BCR are grossly inaccurate and untrue;
6.
Such further or other grounds as Counsel may advise and this Honourable
Court permit.
[5]
The Applicant by this motion seeks injunctive relief pending final
disposition of the above application for judicial review. In support of her
motion the Applicant filed affidavit evidence challenging the assertions made
in the resolution as untrue and inaccurate.
[6]
The Respondents, in response to the motion have filed a total of 15
affidavits which provide an evidentiary basis in support of the grounds for
removal enumerated in the resolution.
[7]
The evidence on the record regarding the procedural fairness issues
raised by the Applicant in her underlying application is conflicting.
Particularly, in respect to the issue of notice of the Resolution to remove the
Applicant from office.
[8]
In order to succeed on their motion, the Applicant must establish that
her attack on the resolution removing her, raises a serious issue, that the
balance of convenience operates in favour of postponing the by-election, and
that irreparable harm would result if the by-election was held prior to a
determination being made as to the legality of the resolution removing the Applicant
from elected office.
Serious
issue
[9]
At the hearing counsel for the Respondents conceded that a serious issue
is raised in the underlying application. I agree. There is at least one
serious issue in the underlying application. Given the low threshold to be met
in order to establish a serious issue in an application for injunctive relief, I
am satisfied, for the purpose of this motion, that the removal of the Applicant
as Chief “on improper grounds or in the absence of satisfactory confirmation of
the grounds” constitutes a live issue in the underlying application.
Balance of
convenience
[10]
In assessing the balance of convenience, the Court must take into
account the public interest which in this instance must be assessed by
considering the needs and best interest of the SRFN.
[11]
The balance of convenience is “a determination of which of the two
parties will suffer the greater harm from the granting or refusal of an
interlocutory injunction, pending a decision on the merits”. (Manitoba
(Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1
S.C.R. 110 (QL), at paragraph 35.
[12]
There is considerable uncertainty in the SRFN in respect to the status
of the community’s elected leadership charged with the responsibility of
governing the community. This situation must not be further exasperated.
[13]
By granting interim order prohibiting the by-election until the issues
raised in the underlying application are determined, I would temporarily
suspend what would otherwise be a validly ordered by-election. By granting the
interim order I would be preserving the status quo until the issues
raised in respect to the validity of the Resolution removing the Applicant are
determined. While less than ideal, preserving the status quo would allow the
legality of the resolution to be determined and an eventual by-election to be
re-scheduled and held if necessary. Further, the affairs of the SRFN can
continue to be conducted by the Acting Chief and counsel. There is no evidence
to suggest otherwise.
[14]
I reject the contention that granting the relief sought would be
disruptive to the community. In my view the situation would be far more
uncertain and more harm would result to the SRFN if the by-election was held
and the Applicant was ultimately successful in her application. The community
would then have to cope with the circumstance of a duly elected Chief having to
vacate his or her office. In the specific circumstances of this case where the
last election for a chief was held a little over one month ago, and where the
results of that election were not challenged. I am of the view that the public
interest and the interest of the SRFN would be better served by preserving the status
quo and prohibiting the holding of the by-election until the issues raised
in the underlying application are settled. The balance of convenience
therefore favors this option.
Irreparable
Harm
[15]
The position of Chief is one of great honour within a first Nation and
removal from that office is not compensable in money damages. The office of
Chief is political, filled by valid election, with attendant responsibilities.
Without the injunction the SRFN will be asked to elect a new Chief in a
by-election called under the Regulations which prohibit the Applicant’s
participation. In the circumstances, I am satisfied that the Applicant would
suffer irreparable harm should the interlocutory injunction not be granted.
[16]
For the above reasons the motion will be granted.
ORDER
THIS COURT ORDERS that:
1. An
interlocutory injunction enjoining the SRFN from holding a by-election for
Chief, pending this Court’s
determination of the underlying application for judicial review.
2. The Applicant
shall have her costs on this motion.
“Edmond P. Blanchard”
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