Date: 20080930
Docket: T-1370-08
Citation: 2008 FC 1098
Ottawa, Ontario, September 30, 2008
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
GEORGE
PRINCE and PAULETTE CAMPIOU
Applicants
and
JARET CARDINAL, RONALD WILLIER, RUSSEL
WILLIER
and SUCKER CREEK FIRST NATION #150A
Respondents
REASONS FOR ORDER AND ORDER
[1] Applicants were elected
as Councillors of the Respondent First Nation by custom election pursuant to The
Customary Election Regulations of the Sucker Creek First Nation #150A (Regulations)
for three-year terms in November 2006.
[2] The parties are
currently involved in another judicial review proceeding in Court file T‑440-08
in relation to the Respondent First Nation’s decision to suspend the Applicants
as Councillors in February 2008. In April 2008, Justice Kelen granted the
Applicants an interlocutory injunction enjoining the Respondents from
suspending them as Councillors. The Court also ordered the Respondents to
reinstate the Applicants as Councillors pending a determination in the
underlying judicial review.
[3] On August 21, 2008, the
Applicants received a copy of a Band Council Resolution dated August 20, 2008
stating that they had been removed as Councillors. They now seek an
interlocutory injunction enjoining the Respondents from holding a by-election
to replace them as Councillors and from interfering with the exercise of their
duties as Councillors pending a determination of the judicial review in this
proceeding. At the hearing of this motion, the Respondents undertook not to
hold a by-election until the within judicial review has been resolved.
[4] In response to the
motion for injunctive relief, the Respondents relied primarily on their
assertion of the existence of an adequate alternative remedy. In particular,
relying on Justice Gibson’s decision in Willier v. Sucker Creek Indian Band
#150A, 2001 FCT 1325, the Respondents submit that since the Regulations provide
an appeal procedure from a decision to remove a Councillor, this is the process
that must be followed rather than an application for judicial review to this
Court. In the Respondents’ view, this motion should fail for the same reason.
[5] Section
15 of the Regulations addresses the removal of a Chief or Councillor
from office and the procedure to appeal that decision. Section 15.5 states;
[…]
If a person does want to appeal this
decision, the same procedure for an Election appeal will be followed.
[6] Whether the Applicants
should be required to pursue a remedy through the appeal procedure in the Regulations
rather than by application for judicial review to this Court is a discretionary
determination for the applications judge. It is not a question to be decided
on a motion for injunctive relief.
[7] It is well established
that to obtain an interlocutory injunction the Applicants must satisfy the
Court that there is a serious issue to be tried; the Applicants would suffer
irreparable harm if the relief sought is not granted; and the balance of
convenience weighs in favour of granting the injunction (RJR-MacDonald Inc.
v. Canada (Attorney General), [1994] 1 S.C.R. 311);
[8] As a finding of an
adequate alternative remedy on judicial review will render a consideration of
the alleged errors surrounding the removal of the Applicants as Councillors
unnecessary, to be successful on this motion the Applicants must first satisfy
the Court that there is a serious issue regarding the existence of an adequate
alternative remedy as asserted by the Respondents.
[9] As noted above, a
determination that there is an adequate alternative remedy is discretionary. In Canadian
Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, Chief Justice Lamer
observed that a number of factors may be considered in determining whether an
individual should be required to proceed with a statutory appeal procedure
instead of having recourse to the court on judicial review. The non-exhaustive
list of factors include the convenience of the alternative remedy, the nature
of the error, and the nature of the appellate body including its investigative,
decision-making and remedial capacities.
[10] In
the present case, the alleged errors are the misapplication of the Regulations
and breaches of procedural fairness. Section 12.8 of the Regulations sets
out the orders the Election Appeal Committee may make in the event of a
successful appeal. The Committee is limited to calling a new election,
by-election or run-off election. The Committee does not have the authority to
order the reinstatement of the Applicants as Councillors. Accordingly, even if
the Applicants were successful on appeal, under the Regulations, they
could not be reinstated and would be required to face an election In my
opinion, this raises a serious issue regarding the adequacy of the alternative
remedy. As to the Respondents’ reliance on Willier, it is
distinguishable on its facts. The dispute between the parties in that case
concerned an election and not the removal of a Councillor as in the present
case.
[11] Given
that the Court on judicial review will have to consider the issues raised by
the Applicants in connection with their removal in the event the adequate
alternative remedy argument is rejected, for the purpose of injunctive relief,
the Applicants must also satisfy the Court that they have raised a serious
issue in the underlying application for judicial review. At paragraphs 34 and
35 of their memorandum of fact and law, the Applicants submit that the
decisions to remove them were not taken in accordance with the Regulations and
allege numerous instances of non-compliance with the Regulations. They
further allege breaches of procedural fairness. As noted above, the
Respondents relied primarily on their adequate alternative remedy argument and
did not specifically address each of the allegations of error. Having reviewed
the motion records of the parties, I am satisfied that the Applicants have
raised serious issues in the underlying judicial review.
[12] As
to the questions of irreparable harm and balance of convenience, the Applicants
make the same submissions as they did in their motion for the interlocutory
injunction before Justice Kelen in April 2008. His reasons for finding that
the Applicants would suffer irreparable harm and that the balance of
convenience weighed in their favour are equally applicable to the present
motion.
[13] It
should also be noted that the Applicants have undertaken to abide by any order
concerning damages that may be caused by the granting of an injunction in the
present matter as required by Rule 373(2) of the Federal Courts Rules,
SOR/98-106.
[14] Accordingly,
the Applicants’ motion for injunctive relief will be granted.
ORDER
THIS COURT ORDERS that:
1. The motion for an interlocutory
injunction is granted with costs in the cause.
2. The
Respondents shall reinstate the Applicants as Councillors with pay including
back pay and with access to their offices.
3. The
Respondents are enjoined from interfering with the Applicants’ exercise of
their duties as Councillors pending a determination of the judicial review in
this proceeding.
“Dolores
M. Hansen”
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