Docket: T-813-24
Citation: 2024 FC 597
Estérel, Quebec, April 18, 2024
PRESENT: The Honourable Madam Justice McVeigh
BETWEEN: |
CECILIA (TONI) JOSEPHINE HERON |
Applicant |
and |
SALT RIVER FIRST NATION NO. 195 |
Respondent |
ORDER AND REASONS
[1] This is a motion for an interlocutory injunction (dated April 11, 2024) to:
(a)staying the Respondent’s suspension of the Applicant dated April 4, 2024;
(b)staying the Respondent’s sanction of the Applicant banishing her from interfering with staff, business, banking and governmental relations dated April 4, 2024;
(c)prohibiting the Respondent from issuing any further suspensions of the Applicant, banishments of the Applicant, other sanctions of the Applicant without the prior leave of this Court; and
(d)prohibiting the Respondent from calling any Special Meeting for the purpose of voting upon the removal of the Applicant from the office of Chief of Salt River First Nation No. 195 (“SRFN”
) without prior leave of this court.
[2] This has been an ongoing litigation battle since the Applicant has been elected on September 19, 2022. She has been in office since her election and has had rolling suspensions without pay of 60 days that have been renewed by counsel. In her 3-year term she has been suspended approximately 17 ½ months.
[3] The facts are set out in two long detailed decisions. Injunction motions have been brought before Justice Ann Marie McDonald and Justice Paul Favel (March 22, 2023; 2023 FC 1124) with the latest being an injunction granted by Justice Christine Pallotta dated on April 4, 2024 (2024 FC 525). Justice Favel issued a long, detailed decision dated March 12, 2024 (2024 FC 413) dealing with a consolidation of judicial reviews, in which the Applicant was successful. The factual basis can be gleaned from these decisions rather than repeating them as the actions by the First Nation are repeated with only slight differences. Of note is that Justice Favel dealt with two of the suspension decision. But the First Nation continued to suspend the Applicant after Justice Favel’s hearing and before the decision was issued .Those post hearing suspensions were not judicially reviewed. It is noted that those suspensions followed much the same as the decisions subject to Justice Favel’s decision.
[4] The Applicant attempted to resume her duties as Chief after she was successful on the March 12, 2024 decision, but she was suspended on March 20, 2024, which was 8 days after the Federal Court decision was released. Both Justice Favel’s judicial review decision and Justice Pallota’s injunction have been appealed to the Federal Court of Appeal by the First Nation.
[5] The current pertinent facts from those decisions are that Justice Pallota: a) stayed the operation of a March 2024 Band Council Resolution [BCR] until the judicial review was determined. That BCR suspended the Applicant until a special meeting could be held on April 4, 2024 at 6:00 p.m. (para 4 of Justice Pallota’s decision); and b) prohibited the First Nation from holding a special meeting of the members on April 4, 2024 for the purpose of voting on Chief Heron’s removal from the office of Chief.
[6] Before me now we know that the First Nation issued a BCR (Appendix A) that suspended the Applicant from April 4 until April 19, at midnight with a meeting on April 18, 2024 that she was invited to for a reconsideration. The Respondent in their memorandum at paragraph 42 said that the special meeting did not take place but “[h]aving received the Court’s order just before noon on April 4th, 2024 it was too late to cancel the catered dinner ordered for after the meeting or to notify all members who may have seen the Notices of Special Meeting; so an Information Meeting, without discussion of removal what held for those who showed up.”
When asked at the hearing how did this BCR come about then if there was no meeting counsel said that at 5:00 p.m. there was a regular council meeting and it is at that meeting that the Chief was suspended.
[7] Based on the information before me this can only be seen as a disregard for the Court’s order as it can be labelled subterfuge or duplicity.
[8] The Applicant’s evidence is that she was not told of the meeting as she had understood from the order that they could not hold the special meeting. She was given a letter dated April 9, 2024 (Appendix B) that told her of a council meeting set for April 18, 2024, at 5:00 to discuss with her the reconsideration of her suspension. This letter goes on to tell her a number of things about council’s positions and ask her 43 questions of which more may arise during the reconsideration discussion.
[9] But pertinent to this injunction motion is that the letter goes on to tell her why she is suspended and that same argument is also advanced to me today. That argument summarized is that the Applicant in her capacity of Chief may not bring an injunction application or she will be suspended. The Applicant may bring an injunction in her personal capacity, however, doing so as a suspended Chief, goes against the council’s decision in the BCR that suspended her. Council is elected and the Applicant has a duty and obligation to the First Nation so that, if an injunction is brought that would undermine a decision by the majority of the elected council, this would result in her breaching her duty to the First Nation. The Respondent says the Applicant requires a full trial (or in this case a judicial review) to question a decision of the council and an injunction is not a full trial, therefore, the Applicant cannot question the BCR that suspended her. A more detailed discussion of this argument is in the April 9, 2024, letter.
[10] Directing myself to the conjunctive tripartite test in Toth v Canada (Minister of Employment and Immigration) (1988), 86 NR 302 (FCA); RJR-McDonald Inc v Canada (Attorney General). [1994] 1 S.C.R. 311.
I. Serious Issue
[11] The first matter at issue is whether I should apply the standard of the serious issue being neither frivolous nor vexatious or the higher standard set out for a mandatory interlocutory injunction on serious issue being a strong prima facie case (R v Canadian Broadcasting Corp., 2018 SCC 5).
[12] I will find, as did Justice Pallotta, that on either standard, the Applicant has met the serious issue standard. This was at the hearing conceded by the Respondent. Of the many serious issues proposed, this branch of the test has been satisfied. Given there are so many matters currently before the Federal Court of Appeal and all are interrelated I will only allude to one serious issue that meets the test in the interest of expediency but in no way does this reflect on the other issues put forth as serious issues as having less merit. The serious issue that the Applicant was not given notice of the suspension after the decision of Justice Favel was clear that meetings to suspend her demanded a high degree of procedural fairness. The April 4 BCR (Appendix B), the subject of the underlying judicial review meets both standards of not being frivolous and vexatious as well as having a strong prima facie case.
II. Irreparable Harm
[13] The Applicant argues that she has been suspended for 17 months plus 3 weeks out of her 3-year term so she is not able to fulfil her duty to the First Nation. This harm is continuing in that she has been successful in her judicial reviews and then in her injunction application and yet, 13 days later she has another injunction hearing. Now the Applicant understands that if she brings an injunction to stay her suspension that the First Nation’s position is they have said have grounds to suspend her. The grounds the Respondent alleges is that she has breached her duty to the First Nation when she questions the BCR that suspends her. This is time she cannot get back when she was duly elected and cannot carry out her mandate. She campaigned with initiatives that she has not been able to do as well as reputational harm in the continued suspensions. The Applicant also alleges there are other duties in her role that she is unable to fulfil.
[14] Contrary to this, the Respondent argued that her reputation is not harmed as she was out of office in 2008 because of a court case against her and yet she was still elected once eligible to run for office. (68 votes for her out of 174 voters). Additionally, the Respondent argues she will not suffer irreparable harm if the orders are granter and she has to go to the April 18 meeting and make representations or wait until her current suspension expires at midnight on April 19 The Respondent also argues that she must prove that if council is not prohibited from exercising their powers to use the Election code to discipline her, then what harm would she suffer, given she was subject to council’s disciplinary powers the day she was elected.
[15] There is also the fact that the April 9 letter asks her to attend the meeting on April 18 and to answer questions before the suspension expires on April 19th. Given the latter, I am not convinced that this meeting would do anything but suspend her again given that she currently has this injunction motion before the Court. I do not see this as a true ability to meet and discuss things to resolve the situation. The Respondent had no inclination to mediate so I do not see this April 18 meeting as anything other than notice that there is a high degree of possibility she will be suspended again given the past patterns of behaviour.
[16] The irreparable harm the Applicant alleges is not speculative as these suspensions continue to be made despite her success in her judicial review application (Favel J.) and by receiving an injunction (Pallotta J.). The Respondent at the hearing indicated that they are relying on suspensions that took place after the Favel judicial review hearing and before the decision issued to say those suspensions have not had a full judicial review on them so they are still valid.
[17] The Applicant has not met the test for irreparable harm. I do not agree with the Respondent’s argument that the fact she was elected shows suspensions or law suits do not harm her. The irreparable harm is that though she was elected after a campaign on a platform with certain initiatives by the band members she is not able to go forward with that platform. Irreparable harm could also arise by the fact there are posters of her suspensions and this could cause a voter to see futility in placing their vote with her as council will suspend her during the term.
III. Balance of Convenience
[18] The Respondent argues that the balance lies with them given that the status quo in this case is that since October 13, 2022, she has been suspended. They say if the status quo is not maintained, it will result in irreparable harm as it would give the Applicant her ultimate remedy, treating as invalid the First Nation’s government’s exercise on April 4 and in the future of its inherent and Election Code powers, without a full hearing on the merits (para 67 of the Respondent’s memorandum). They further say that since the March 12 decision of Justice Favel that there is public doubt and ambiguity as the Applicant is trying to change the signing authority on banking as well as other described upheaval (paras 71-74).
[19] I agree with Justice Pallotta’s assessment that the status quo is not as the Respondent characterized it as being to maintain the suspension and the council that has been in place since October 2022.
[20] The balance of convenience favours the Applicant given she has been out of office for 17 months and was successful at Court on previous judicial review suspensions.
[21] The balance of convenience does follow in this case. Though the upheaval is real, it follows from Justice Favel’s and Justice Pallotta’s decisions that the balance is in the Applicant’s favour.
[22] This litigation is costly and cannot be in the First Nation's best interest. I asked the parties to consider participating in a judge-led mediation that involved elders to demonstrate to the community the self-determination type resolution rather than an imposed result by a judge. The Applicant agreed with some conditions but the Respondent’s instructions were not to accept any of the offered dispute resolution. My cost determination takes this into consideration given evidence was led that the Applicant is paying her own legal fees.
IV. Relief Sought
[23] I will grant an injunction staying the operation of the April 4, 2024 BCR suspending the Applicant pending the determination of the underlying judicial review.
[24] I will order that the matter be case managed and heard in an expedited hearing.
[25] I will restate that the injunction issued by Justice Pallotta remains in place where she is staying all the related sanctions put on the Applicant.
[26] I will prohibit the meeting to take place on April 18, 2024 where reconsideration of her suspension was to take place. This does not mean that the first Nation may hold a meeting on a different day or call it something else; it means that they are prohibited from having meetings to suspend the Applicant until the underlying judicial review is determined.
[27] I will not issue a prohibition order as requested by the Applicant at this time as I do not have sufficient evidence to support one, nor do I wish to thwart the Election Code in any way. But without compliance with the orders of this Court then further motions may be brought.
[28] I will not order solicitor-client costs against the councillors, but I will award costs in the amount of $6,000 payable forthwith to the Applicant by the Respondent.
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