Date: 20081117
Docket: T-1587-08
Citation:
2008 FC 1287
Ottawa, Ontario, November
17, 2008
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
Temagami
First Nation
and
John
Turner, Jamie Saville, Joseph Twain, Patricia Neu,
Roxanne Ayotte, John Mckenzie,
Steven Laronde and Arnold Paul
REASONS FOR ORDER AND ORDER
[1]
The
applicant is seeking an interim injunction that would enforce the results of a
general election held on June 12, 2008 until the underlying proceeding dealing
with a judicial review of two resolutions purporting to amend the Temagami
First Nation Tribal Constitution has been heard and decided on its merits. The
applicant is also requesting a stay of these resolutions amongst other
remedies.
[2]
What is at
stake in these proceedings is the leadership of the community. It is a battle
for control and the power to govern the Temagami First Nation.
[3]
In order
to be successful in their motion for an interlocutory injunction against the
respondents, the applicant is required to convince this Court that a serious
issue (or issues) exists, irreparable damage has been caused by the issue, and
that the balance of convenience favours the applicant’s position. This
tripartite test is set out in the landmark Supreme Court of Canada decision in RJR-Macdonald Inc. v.
Canada (Attorney General), [1994] 1 S.C.R. 311:
At the first stage, an
applicant for interlocutory relief in a Charter case must demonstrate a
serious question to be tried. Whether the test has been satisfied should
be determined by a motions judge on the basis of common sense and an extremely
limited review of the case on the merits. The fact that an appellate
court has granted leave in the main action is, of course, a relevant and
weighty consideration, as is any judgment on the merits which has been
rendered, although neither is necessarily conclusive of the matter. A
motions court should only go beyond a preliminary investigation into the merits
when the result of the interlocutory motion will in effect amount to a final
determination of the action, or when the constitutionality of a challenged
statute can be determined as a pure question of law. Instances of this
sort will be exceedingly rare. Unless the case on the merits is frivolous
or vexatious, or the constitutionality of the statute is a pure question of
law, a judge on a motion for relief must, as a general rule, consider the
second and third stages of the Metropolitan Stores test.
At the second stage the
applicant is required to demonstrate that irreparable harm will result if the
relief is not granted. `Irreparable' refers to the nature of the harm
rather than its magnitude. In Charter cases, even quantifiable
financial loss relied upon by an applicant may be considered irreparable harm
so long as it is unclear that such loss could be recovered at the time of a
decision on the merits.
The third branch of the
test, requiring an assessment of the balance of inconvenience to the parties,
will normally determine the result in applications involving Charter
rights. A consideration of the public interest must be taken into account
in assessing the inconvenience which it is alleged will be suffered by both
parties. These public interest considerations will carry less weight in
exemption cases than in suspension cases. When the nature and declared
purpose of legislation is to promote the public interest, a motions court
should not be concerned whether the legislation has in fact this effect.
It must be assumed to do so. In order to overcome the assumed benefit to
the public interest arising from the continued application of the legislation,
the applicant who relies on the public interest must demonstrate that the
suspension of the legislation would itself provide a public benefit.
This Court consistently applies this
tripartite test to motions for injunctive relief, as evidenced by the recent cases of Prince v. Sucker Creek First Nation 2008 FC 479 (para. 20), and Henderson v. Sioux
Valley Dakota Nation, [2008] F.C.J. No. 1032 (para. 23).
[4]
The
underlying proceeding raises issues of a complex nature such as: the
interpretation to be given to section 18 (1) of the Federal Courts Act,
R.C.S. 1985 c. F-7, as amended, in relation to both the standing of the
applicant in these proceedings and the respondents as a decision-making body
subject, or not, to extraordinary remedies; the jurisdiction of this Court in
consideration of the factual basis presented; the customary traditions and
their impact, if any, on the Temagami First Nation Tribal Constitution; the
conflicting evidence presented by both parties in support of their respective
positions on the interlocutory injunction and stays, and questions of a
procedural nature that are of vital importance in these proceedings.
[5]
These
complex issues cannot be dealt with successfully in a judicial way without the
Court benefiting from complete records dealing with all of the legal issues
arising from such proceedings.
[6]
In effect,
the interim measures being sought are effectively asking this Court to
pronounce itself on some of the substantive issues that directly impact the
underlying application for judicial review of resolutions.
[7]
This is
not in the interest of justice, nor would it be justice well done.
[8]
Having
read the proceedings as presented, and having heard the parties for a period of
more than two (2) hours, I do find that there are serious issues to be dealt
with eventually.
[9]
The Court,
having reviewed the evidence, does consider that at present the uncertain
situation regarding the leadership of the community does result in damages to
the community, such as a lack in the decision-making process of the Band
Council, the diminution of the control and legal authority of the leadership,
unnecessary division within the community, uncertainty in the reporting
hierarchy for Band personnel, etc... Such consequences are regretful and should
not exist, but do not constitute irreparable harm or damages that the second
part of the RJR Macdonald test requires. In that case, the Supreme
Court of Canada clearly states that “irreparable harm” is
harm that cannot be repaired or compensated:
"Irreparable"
refers to the nature of the harm suffered rather than its
magnitude. It is harm which either cannot be quantified in monetary
terms or which cannot be cured, usually because one party cannot collect
damages from the other.
[10]
The
damages presented here by the applicants are not in a state of non-repair, and
they could be compensated.
[11]
The Court
has noted that the Chief and counsellors elected in the general election of
June 12, 2008 are still in control of the situation: the offices of the Band
Council are under their supervision, the bank account of the Band is under
their authority, and the department of Indian and Northern Affairs continues to
recognize them as the duly elected council. Until this Court comes to a final
determination regarding the underlying application for judicial review, such a
situation should ensure that the basic needs of the community can at least be
met.
[12]
Furthermore,
as requested by both parties, it is in the best interests of the community that
the underlying application for judicial review be expedited, allowing this
Court to decide all of the remaining issues at play in a definitive way. With
the consent of both parties, this Court will issue an order to this effect which
will also include a specific schedule and the permission to include in the
application for judicial review the evidence of both parties in support of the
present motion.
ORDER
THIS COURT
ORDERS that the motion for an interim injunction and stays of the
resolutions is dismissed;
The hearing of the
underlying application for judicial review will be expedited;
The evidence
submitted in the interlocutory proceeding shall be evidence applicable to the
underlying proceeding;
The following
schedule shall be abided by the parties:
·
The
applicant must perfect their record by November 21st, 2008;
·
The
respondents will have the opportunity to cross-examine applicant’s affiants
during the period from November 21st, 2008 through December 9th,
2008;
·
The respondents
must perfect their record by December 16th, 2008;
·
The
applicant will have the opportunity to cross-examine the respondents’ affiants
during the period from December 16th, 2008 through January 16th,
2009.
·
Then, one
of the parties shall forward to the Court administrator a requisition for
hearing in accordance with Rule 314 of the Federal Court Rules.
Costs in the cause.
“Simon
Noël”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1587-08
STYLE OF CAUSE: Temagami
First Nation v. John Turner and others
PLACE OF
HEARING: Ottawa, Ontario
DATE OF
HEARING: November
13, 2008
REASONS FOR ORDER: NOËL S. J.
DATED: November
17, 2008
APPEARANCES:
|
Ms Maureen
Ball
Ms Andrea Risk
|
FOR THE APPLICANT
|
|
Mr. Patrick M.
Nadjiwan
|
FOR THE RESPONDENTS
|
SOLICITORS
OF RECORD:
|
Cunningham,
Swan, Carty, Little & Bonham LLP
Kingston, Ontario
|
FOR THE APPLICANT
|
|
Nadjiwan Law
Office
North Bay, Ontario
|
FOR THE RESPONDENTS
|
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