Date: 20250121
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Docket: T-2880-24
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Citation: 2025 FC 119
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Ottawa, Ontario, January 21, 2025
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PRESENT: Justice Andrew D. Little
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BETWEEN:
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CHIEF MARCEL MEDICINE-HORTON
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Applicant
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and
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RAINY RIVER FIRST NATIONS
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Respondents
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ORDER AND REASONS
[1] The applicant is a member and the Chief of the respondent, Rainy River First Nations (“RRFN”
). On September 25, 2024, the Band Council of RRFN passed a motion that placed the applicant on “unpaid suspension”
from his position as Chief for six months from October 4, 2024, to April 4, 2025. The Band Council advised him of its decision in early October 2024.
[2] The applicant filed an application for judicial review, seeking to quash the Band Council’s suspension decision. He also seeks an order in the nature of mandamus compelling the RRFN to notify its members that the applicant’s suspension has been quashed, to permit him to exercise all functions and duties as Chief and to reinstate his financial compensation and benefits (including arrears) for the period of the suspension. The applicant’s position is that the Band Council did not have jurisdiction to make the decision to suspend him, failed to observe principles of natural justice and procedural fairness, and made an unreasonable decision.
[3] On the present motion, made in writing under Rule 369 of the Federal Courts Rules, SOR/98-106, the applicant seeks a stay of the Band Council’s suspension decision under Rule 373 and section 18.2 of the Federal Courts Act, RSC, 1985, c F-7, pending the outcome of the judicial review application.
[4] The applicant filed his own affidavit for this motion. The respondent filed an affidavit from one of the Band Councillors who participated in the suspension decision. Each affidavit attached documents as exhibits.
I. Facts and Events Leading to this Motion
[5] In November 2022, the applicant was elected Chief of the RRFN. On May 10, 2024, another member of RRFN came to his home. The member was also a contract employee of the Band. The other member first spoke to the applicant’s wife, in the driveway. Sensing that his wife was being accosted, the applicant intervened. The men exchanged words, following by a brief physical altercation. The applicant was not hurt and the other member sustained a bruise on his torso.
[6] The applicant immediately advised the Band Council about the incident. In the days that followed, the RRFN’s counsel engaged an independent third party to conduct a workplace violence investigation. The applicant went on voluntary paid leave from his position as Chief as of May 28, 2024. During the investigation, the investigator interviewed both men, the applicant’s wife and another person in order to prepare a report. The investigation was apparently “confidential”
although there is little or no evidence in the motion materials about confidentiality. Nor is there evidence as to whether or how such confidentiality obligations were conveyed to participants including the applicant.
[7] The police investigated and did not charge either man.
[8] In early August, the applicant advised the Band Council that he wanted to return to work as Chief.
[9] On August 6, 2024, the investigator delivered a copy of a Final Detailed Report dated June 24, 2024, addressed to legal counsel and marked “Confidential”
(the “Report”
), together with final summary investigation report (a shorter, anonymized version of the Report). The latter version was provided to the applicant. The Band Council received both versions of the report.
[10] The Report considered the RRFN Governance Policy and its Workplace Harassment and Violence Prevention Policy. The Report found that both men had engaged in physical violence on May 10, 2024, but the Chief was essentially acting (as the anonymized version stated) in self-defence and had not breached RRFN’s policies with respect to violence. The Report found that the applicant violated the two RRFN policies because of his words, tone and demeanour as he spoke to the other member before the altercation began. The other member violated the RRFN’s Workplace Harassment and Violence Prevention policy, through his words, tone and demeanour towards the applicant and through certain actions he took against the applicant on May 10, 2024.
[11] Also on August 6, 2024, the applicant spoke about the May 10 incident at a membership meeting of the RRFN. It appears that the other member had made statements about the incident, including through social media.
[12] By letter to the applicant dated August 9, 2024, RRFN’s manager of administration summarized findings in the anonymized version of the Report and stated as follows:
Engaging in harassing language against a contract employee and Member of Rainy River First Nations as Chief is a serious offence that requires corrective action. Further, there is concern that proper de-escalation techniques could have avoided this unfortunate incident and that you failed to employ such techniques during your interaction with [the other member]. In addition, Council is aware that you breached your duty of confidentiality with respect to the Investigation by discussing the matter and the Investigation openly at the last Membership Meeting on August, 6, 2024. Rainy River First Nations also takes this breach of confidentiality seriously.
However, prior to any determination as to what actions should be taken in response to the Anonymized Findings and your breach of confidentiality, Council would like to invite you to discuss the Anonymized Findings with them, and for you to provide your opinion on what next steps should be taken in an effort to resolve this matter. Please note that the findings and conclusions made by the Investigator will not be open to discussion, and that the purpose of this invitation is to discuss potential next steps and options for resolution.
[13] The letter then provided options as next steps towards a resolution. The applicant preferred mediation, but the other member did not. The next step was therefore a meeting between the Band Council and the applicant.
[14] The Band Councillor’s affidavit filed on this motion advised that representatives of the Band Council attempted to arrange and scheduled three meetings with the applicant, at which he would be able to bring a support person to the meeting. The Band Councillor’s affidavit advised that the scheduled meetings were cancelled. The applicant’s affidavit is silent on these scheduled meetings.
[15] On September 23, 2024, the Band Council met with the applicant and his legal counsel. The video meeting was recorded and a transcription is in the record.
[16] The Band Councillor’s affidavit advised that the purpose of the September 23 meeting was to “provide the applicant with an opportunity to respond to the [Report] and to explain his conduct in relation to the breaches of confidentiality”
. The applicant testified that he was “not advised prior to this meeting that [he] was going to be interrogated by council regarding matters not contained within the [Report]”
.
[17] On September 25, 2024, the Band Council passed a motion to place the applicant on “unpaid suspension”
beginning on October 4, 2024, and ending on April 4, 2025.
[18] The Band Council requested a meeting with the applicant for October 4, 2024, to advise the applicant of the Council’s decision. The applicant declined to attend because his legal counsel was not permitted to attend.
[19] The Band Council wrote to the applicant by letter dated October 4, 2024, signed by five of its six members and apparently sent on October 7, 2024. In the letter, the Band Council provided its assessment of the incident on May 10 and of certain “additional conduct”
during and subsequent to the investigation. The letter described the “additional conduct”
as falsely informing members of the community that he was on unpaid leave or was suspended without notice; falsely informing a WSIB agent that he was on “house arrest”
; speaking about the May 10 incident and the investigation at the August 6, 2024, Membership Meeting “despite [his] duties of confidentiality and despite recommendations by members of Council advising [him] against doing so”
; and stating at that meeting that he ‘did not put a hand’
on the other member, “among other untruthful and/or misleading statements”
.
[20] The letter dated October 4, 2024, advised the applicant that the Band Council had determined that a six-month unpaid suspension was appropriate in the circumstances, based on the May 10 incident and the “additional conduct”
.
[21] On October 23, 2024, the Band Council sent a memorandum to the RRFN membership through the OneFeather platform about the circumstances and the suspension of the applicant as Chief. The applicant testified that he prepared his own message to the membership but the Band Council did not allow him to send it on the same platform.
[22] On October 28, 2024, the applicant filed an application with this Court for judicial review of the Band Council’s suspension decision.
[23] On December 5, 2024, the applicant filed this motion in writing to stay the suspension decision pending the determination of the judicial review application. The respondent filed its responding motion record on December 16, 2024, and the applicant filed a reply memorandum on December 19, 2024. Following the Court’s winter recess, this motion came to my attention during the week of January 13, 2024, for disposition in writing under Rule 369.
II. Analysis
[24] As both parties submitted, the appropriate legal framework for the applicant’s motion for a stay is the three-step analysis described in RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 S.C.R. 311. To decide whether is it just and equitable to issue an interlocutory stay, the Court considers whether: (i) on a preliminary assessment of the merits of the applicant’s case, there is a serious issue to be tried (in the sense that the applicant’s claim is not frivolous or vexatious); (ii) the applicant would suffer irreparable harm if the injunction is not granted; and (iii) the balance of convenience favours granting or denying the stay, based on an assessment of which party would suffer greater harm from the granting or refusal of the proposed order, pending a decision on the merits.
[25] These three elements are conjunctive, in that an applicant must satisfy each one to obtain relief: Canada (Heritage) v. 9616934 Canada Inc., 2023 FCA 141, at para 11; Heron v. Salt River First Nation No. 195, 2024 FC 525 (“Heron Injunction”
), at para 7; Heron v. Salt River First Nation No. 195, 2023 FC 1124, at paras 14-15; Simon v. Mohawk Council of Kanesatake, 2023 FC 668, at paras 21-23; Halcrow v. Kapawe'no First Nation, 2020 FC 1069, at paras 13-15.
[26] However, the three stages of analysis are not watertight compartments or silos; they may be factually or legally interrelated. When considering each of the three elements, the Court has flexibility in how it assesses the circumstances of each case. See: Johnny v. Dease River First Nation, 2024 FC 1379, at para 17; Bellegarde v. Carry the Kettle First Nation, 2023 FC 129 (“Bellegarde 2023”
), at paras 17-19; Whitstone v. Onion Lake Cree Nation, 2021 FC 1228, at paras 10-14; Turbo Resources Ltd. v. Petro Canada Inc., [1989] 2 FC 451 (CA), at pp. 474-475.
A. Stage One: Serious Issue
[27] On the first element of the RJR-MacDonald framework, the applicant submitted that he raised serious issues about whether the Band Council had jurisdiction to suspend him and a serious issue that he was not treated with procedural fairness. The respondent submitted that the applicant had not raised a serious issue, as the Band Council had the authority to suspend the applicant due to a provision in the RRFN’s Election Code requiring the Chief and Council to govern in accordance with a Code of Conduct. The respondent referred in part to section 3.6 of the RRFN’s Governance Policy, which contemplates that if a “Council member … divulges confidential information, that person shall be suspended from his or her position for a period of not less than 4 (four) months or as determined by a quorum of Council”
. The respondent maintained that there was no breach of procedural fairness and that it was “absolutely clear”
that the applicant was provided with notice that, in addition to his response to the Report, the Band Council intended on discussing additional conduct. The respondent noted that breaches of confidentiality are expected to result in a suspension under section 3.6 of the Governance Policy. The respondent referred to the contents of the August 9, 2024, letter to the applicant.
[28] Before determining whether the applicant has raised a serious issue at stage one, there is a legal issue to resolve. The respondent contended that the applicant should meet an “elevated”
standard for a serious issue on this motion. The respondent’s argument was that because the order requested by the applicant essentially grants the remedy he seeks on the main application for judicial review, the applicant should have to show that he will likely succeed on the pending judicial review application (citing Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2018 FC 102, at para 42).
[29] I do not agree with the respondent on this issue. On a motion for an interlocutory injunction or stay, the principle is that the Court should not engage in an extensive review of the merits at stage one unless the result of the interlocutory motion will in effect amount to a final determination of the underlying judicial review application. In the latter circumstance, the Court should engage in a “more extensive review of the merits”
at the first stage: RJR-MacDonald, at pp. 338-339; Peters First Nation v. Lock, 2024 FC 113, at para 30; Monsanto v. Canada (Health), 2020 FC 1053, at paras 44, 56. In this case, I do not believe that granting the requested stay removes any potential benefit from either party proceeding to the judicial review application and doing so would not amount to a final remedy: RJR-MacDonald, at p. 338; Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, [2017] 1 S.C.R. 824, at paras 61-64 (Côté and Rowe JJ., dissenting). If the stay is granted and the applicant later does not succeed on judicial review, then he would have to continue with the period of suspension that has not been completed. The applicant’s application also seeks more than an order setting aside the Band Council’s suspension decision.
[30] On the first element in RJR-MacDonald, I find that the applicant has raised a serious issue concerning whether the process leading to the Band Council’s suspension decision was procedurally fair. The applicant’s concerns included that he did not receive proper notice and particulars of the “additional conduct”
allegations against him before the September 23 meeting with the Band Council, to enable him to know the case to meet and respond to the allegations Neither party made specific reference to the factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, to determine the nature and degree of procedural fairness in the present circumstances. However, there is recent authority that may be relevant to the procedural fairness requirements and to the issues of notice and particulars: Heron v. Salt River First Nation No. 195, 2024 FC 413, at paras 49-50, 56, 59-60; Bellegarde v. Carry the Kettle First Nation, 2024 FC 699, at para 142, 148; Bastien v. Jackson, 2022 FC 591, at paras 48-53. See also Baker, at paras 22-28.
[31] The August 9, 2024, letter to the applicant referred to the findings of the Report and the applicant’s alleged breach of a “duty of confidentiality with respect to the Investigation by discussing the matter and the Investigation openly”
at the membership meeting on August 6, 2024. However, there is nothing in either party’s records filed on this motion to indicate that, prior to the meeting on September 23, the Band Council provided him with advance notice or particulars of the rest of the “additional conduct”
raised at the September 23 meeting and later relied upon by the Band Council to suspend the applicant as described in the letter dated October 4, 2024. The transcript of the September 23 meeting appears to suggest that the meeting was to give the applicant an opportunity to be heard concerning possible Band Council action in response to the Report. There was no reference at the outset of the meeting to a possible breach of confidentiality or to any of the specific incidents of “additional conduct”
(including at the August 6, 2024, membership meeting). I also note that each of the other “additional conduct”
allegations involves a statement by the applicant that was alleged to be false or misleading. Finally, the impact of the decision on the applicant is affected by the term of suspension that may be imposed under section 3.6 of the Governance Policy.
[32] In making these observations about a serious issue concerning procedural fairness, I hasten to add that neither party has filed a record on the judicial review application. I am also aware of the respondent’s position, that the applicant had an opportunity to respond to certain allegations and that he attended the September 23 meeting with his legal counsel. As the requirements of procedural fairness are eminently variable and there will be a number of factual and legal issues for the Court to consider on judicial review, I make no comment on the merits of the issue. It is enough to identify a sufficiently serious issue for determination on the judicial review that meets the legal threshold at stage one of the RJR-MacDonald framework.
B. Stage Two: Irreparable Harm
[33] Having found that the applicant has raised at least one serious issue on the pending judicial review, I turn to the second element in the RJR-MacDonald framework: irreparable harm. As is well established, irreparable harm is harm that, by its nature, cannot be quantified in monetary terms or cannot be cured: RJR-MacDonald, at p. 341.
[34] The applicant submitted that his suspension as Chief was tantamount to a removal of an elected official from participating in and voting at Band Council meetings and from carrying out other duties. The applicant argued that there is always harm when the will of the electorate is thwarted. The applicant’s affidavit characterized the suspension as a “very drastic sanction: I am being barred from fulfilling the duties my community elected me to do”
. The applicant testified about the reason for his request for a stay of the suspension until his judicial review application is decided. It “is simple: my application will be rendered meaningless if I am forced to serve the sanctions in full before it can be decided”
. The applicant relied on Fort McKay First Nation v. Orr, 2012 FCA 17, at paras 14-15; Whalen v. Fort McMurray No. 468 First Nation, 2019 FC 732, [2019] 4 FCR 217, at paras 49, 55. In his reply argument, the applicant added Heron Injunction, at para 31, and Sloat v. Grand Erie District School Board, 2024 ONSC 3493, at para 24.
[35] The respondent disagreed, arguing that the applicant’s onus on this motion was to demonstrate clear and non-speculative evidence of irreparable harm. According to the respondent, the applicant filed no evidence that harm will actually be suffered if the stay is not granted, nor that any speculative harm would not be compensable by damages. The respondent observed that the applicant had been on paid or unpaid leave since May 2024. The respondent noted that the RRFN had been operating without issue for that period, referring to the Band Councillor’s evidence that there were no formal complaints made to the Council from RRFN members concerning the suspension and the RRFN community has continued to operate without issue. The respondent relied on this Court’s recent decision in Squinas v. Lhoosk’uz Dené First Nation, 2023 FC 612.
[36] The respondent also argued that the “clear delay”
in bringing this motion between the start of his unpaid suspension in early October until filing this motion in early December 2024 (keeping in mind that the applicant has not served in his role as Chief since May 2024) undermined the applicant’s allegation of irreparable harm.
[37] I am unable to conclude that the evidence filed by the applicant shows that he will be (or is being) irreparably harmed if the Band Council’s suspension decision is not stayed until the disposition of the application for judicial review.
[38] The applicant’s principal position was, in effect, that his suspension as Chief shows irreparable harm because he is prevented from attending meetings and carrying out his duties as Chief. If this position suggests that irreparable harm flows automatically from the applicant’s suspension, I respectfully disagree. A finding of irreparable harm is not automatic or presumed: it must be shown on the facts of each case. In the Federal Courts, an applicant must adduce clear and non-speculative evidence of the harm(s) that will occur if the Court does not intervene. See Salt River First Nation #195 v. Heron, 2024 FCA 87, at paras 8, 15, 17, 19; Squinas, at paras 22-23 (citing Stoney First Nation v. Shotclose, 2011 FCA 232, at paras 48-51); Whitstone, at para 18; Halcrow, at paras 29, 37; Solomon v. Garden River First Nation, 2018 FC 1284, at paras 35-36. As Justice Grammond observed in Whitstone, the inability to represent the people or to exercise political power may or may not constitute irreparable harm, depending on the circumstances: Whitstone, at para 20.
[39] In the context of First Nations governance matters, some decisions of this Court have concluded that the suspension or removal of a councillor or chief may constitute irreparable harm owing to the consequences of the suspension or removal (e.g., Bellegarde 2023, at paras 23, 35; Whitston, at para 21) or in light of an existing determination by the Court (Heron Injunction, at para 31). Other decisions of the Court have found no irreparable harm when the evidence does not warrant that conclusion (e.g. Squinas, discussed below) or if there is an alternative recourse available to the applicant (e.g., McDonald v. Fond du Lac Denesuline First Nation, 2021 FC 96, at paras 16-20). See also Awashish v. Conseil des Atikamekw d’Opitciwan, 2019 FC 1131, at paras 35-38.
[40] The Court has also recognized a principle of restraint or minimal intrusion in First Nations governance matters: e.g., Bellegard 2023, at para 20; Whitstone, at para 13; Pastion v. Dene Tha’ First Nation, 2018 FC 648, [2018] 4 FCR 467, at paras 21-28.
[41] In Squinas, the Court dismissed a motion for a stay of a Chief’s suspension. With respect to irreparable harm, the applicant Chief testified that it was crucial for her to travel to meetings the week after the stay hearing to receive an offer from federal government and to meet with provincial ministers, meetings that resulted from five years of intensive work. Mosley J. found that the evidence with respect to potential harm resulting from the applicant’s suspension was “entirely speculative”
, including the evidence about the allegedly crucial meetings with government officials. There was “no evidence that the affairs of the [First Nation] have not been effectively managed since February 16, 2023, and the Applicant’s assertions that no one else could represent the Band at these meetings [was] self-serving and unconvincing”
. See Squinas, at paras 22-23.
[42] In this case, neither the applicant’s affidavit nor his submissions demonstrated any specific harm that the suspension has been causing since October 4, 2024, or will cause before April 4, 2025, to the applicant personally or in his capacity as Chief (or by extension to the RRFN and its operations). In that sense, the factual basis for the alleged irreparable harm in this case is not as strong as the evidence in Squinas. Here, the only evidence directly on this point is that the Band Council and the RRFN are operating without complaints from members.
[43] In addition, the applicant has not been carrying out his function as Chief for more than seven months, as he was on paid leave from May 28 to October 4, 2024, and then unpaid leave since then as a result of the Band Council’s suspension decision.
[44] The applicant’s affidavit stated that his judicial review application will be “rendered meaningless”
if he must serve the full suspension. However, he did not elaborate on that broad assertion, for example to explain why success on his judicial review application would not be consequential to him. In light of the content of the “additional conduct”
allegations, I am not persuaded that the application will be meaningless to either party if the Court does not intervene to order a stay. As I see it, there will remain issues that may warrant a judicial review hearing on the merits.
[45] While the applicant’s submissions referred to reputational harm, there is insufficient evidence on that subject on this motion to show irreparable harm.
[46] Although the absence of demonstrated irreparable harm is enough to dismiss this motion, there are two other points that affect the Court’s decision on whether to issue a stay.
C. Alleged Delay by the Applicant
[47] The respondent observed that the applicant did not bring this motion promptly upon filing his application for judicial review. Approximately two months elapsed after the Band Council notified the applicant of its suspension decision until the applicant filed this motion. The applicant received notice of the suspension decision on approximately October 7, 2024, and filed an application for judicial review on October 31, 2024. When he served it, he asked the respondent to agree to stay the suspension decision, which the respondent declined on November 19. The applicant filed this motion on December 5, 2024.
[48] A moving party’s delay in seeking an interlocutory stay or injunction from a court may relevant to whether irreparable harm has been demonstrated, as delay may indicate that the harm is not irreparable or sufficiently important to the applicant to warrant interlocutory relief: Canada (Attorney General) v. Oshkosh Defense Canada Inc., 2018 FCA 102, at paras 22-23; Cardinal v. Cleveland Indians Baseball Co. Limited Partnership, 2016 ONSC 6929, at para 73; Robert J. Sharpe, Injunction and Specific Performance (Toronto: Thompson Reuters, 1992) (loose-leaf updated November 2024, Release No 1), at § 1:28. A moving party’s delay may also be relevant at the balance of convenience stage or to the court’s overall consideration of whether it is just and equitable to grant a stay or injunction: see Google, at para 25; Awashish v. Conseil des Atikamekw d’Opitciwan, 2019 FC 1131, at para 49; Namgis First Nation v. Canada (Fisheries, Oceans and Coast Guard), 2018 FC 334, at paras 104, 108-110; Turbo Resources Ltd., at p. 478.
[49] The court’s assessment of the impact of delay will be sensitive to the specific events during the passage of time, including the applicant’s explanation for the delay: Oshkosh Defense Canada Inc., at para 23; Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard), 2021 FC 293, at paras 108-109; Richmond Hill Zone Hockey Association v. Ontario Minor Hockey Association, 2023 ONSC 2137, at paras 99-101; Romana v. The Canadian Broadcasting Corporation et al., 2017 MBQB 163, at paras 69, 73-75.
[50] In this case, the applicant advised that he asked the respondent to agree to stay the suspension when he served his judicial review application on October 31, 2024. Following a change of counsel, the RRFN refused the applicant’s request on November 19. The applicant argued that the RRFN’s refusal “necessitate[ed] this motion”
, which was filed approximately two weeks after the refusal. The applicant suggested in reply argument that RRFN’s conduct “caused”
the delay, because RRFN declined to provide requested documentation about the suspension decision in October and then not did respond immediately to the request for a stay.
[51] Neither party filed evidence to show the back-and-forth between the parties. The applicant attempted to avoid this motion and did not waive his rights to seek a stay: see Esgenoôpetitj First Nation v. Jones, 2005 FC 884, at para 25. The RRFN may or may not have dragged its heels in responding to the applicant’s request for documents and for an agreed stay of the suspension decision. However, the applicant has the onus on this motion and did not explain why the documents requested from RRFN affected the timing of this motion or delayed its filing (or the filing of the judicial review application). Nor did the applicant explain why he did not file his motion and seek a prompt oral hearing, rather than filing a motion in writing under Rule 369.
[52] The passage of time does not favour the applicant’s position on irreparable harm, or overall, and militates against intervention by the Court.
D. The Impact of the Serious Issue
[53] I have considered the impact of finding a serious issue concerning possible procedural unfairness in the process leading to a decision.
[54] The procedural fairness issue arising in relation to the Band Council’s suspension decision is a factor that weighs in favour of a stay of that decision pending the outcome of the judicial review application. It may go to the harm of not being Chief for the next three months or so, or may be a factor to assess at the third stage or in the Court’s overall exercise of discretion on this motion. Regardless of where it fits conceptually, I have concluded that in the particular circumstances of this case, discussed already, it is not a determinative factor.
III. Conclusion
[55] Because the elements of the RJR-MacDonald framework are conjunctive and the applicant has not shown the required element of irreparable harm, it is not necessary to consider the third element (balance of convenience or harms). Although the applicant has raised a serious issue as to procedural fairness, the applicant’s motion for a stay must be dismissed.
[56] In the exercise of the discretion under Rule 400, the Court’s order will reserve the issue of costs of this motion to the judge hearing the application for judicial review.
ORDER IN T-2880-24
THIS COURT ORDERS THAT:
The applicant’s motion for a stay is dismissed.
Costs of this motion are reserved to the Court on the application for judicial review.
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“Andrew D. Little” |
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Judge
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FEDERAL COURT
SOLICITORS OF RECORD