Date: 20010711
Docket: T-285-01
Neutral citation: 2001 FCT 787
BETWEEN:
CHIEF ED HAYDEN, COUNCILLOR PETER ATKINSON, COUNCILLOR MICHAEL LITTLEJOHN, COUNCILLOR MITCH LAROQUE, COUNCILLOR MARIE HENRY for and on behalf of the Roseau River Anishinabe First Nation,
Applicant
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HERMAN ATKINSON, VICTOR ANTOINE, MELVIN CHASKEY, JOSEPH FRENCH, RICHARD HAYDEN, GLEN NELSON, FRANK PAUL, WILSON HENRY, ERNIE JAMES, GLORIA JOHNSON, DENNIS SEENIE, DEREK THOMAS, KEVIN LAROQUE, RODNEY PATRICK, WAYNE TAIT, CHERYL LITTLEJOHN, THOMAS THOMAS II, and MARTHA LAROQUE in their capacities as Custom Council Members of Roseau River Anishinabe First Nation and ALDINE ATKINSON and GRACE SMITH in their capacities as purported Electoral Officers of the Roseau River Anishinabe First Nation,
First Respondents,
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FELIX ANTOINE, MARTHA LAROQUE, MARY CHASKY, THOMAS THOMAS and RODNEY PATRICK, in their capacities as the persons purportedly elected as Chief and Council pursuant to the contested election,
Second Respondents,
1. Introduction
[1] This is a motion by the applicants for an interlocutory injunction to prevent the respondents from assuming the role of Chief and Council of the Roseau River Anishinabe First Nation. The motion came on for hearing in Winnipeg on April 30, 2001.
2. Statement of Facts
[2] The applicants are the former Chief and Council of the Roseau River Anishinabe Indian Band, a band of Ojibway persons in Southern Manitoba. Approximately half of the band members live on the Roseau River Indian Reserve #2, and approximately 150 members live on the Roseau Rapids Indian Reserve #2A. The remainder of the band members reside off-reserve, primarily in Winnipeg. The applicants were elected on March 8, 1999, to a four-year term.
[3] On January 30, 1991, the band adopted the Roseau River Anishinabe First Nation Election Act and Regulations. As part of the governance of the band, an organization known as the Custom Council exists to represent each family's interests.
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[4] Paragraph 19 of the band's Election Act provides that amendments to it must be made by means of a two-part process: the Custom Council first sets out the amendment by resolution, and then a full tribal membership meeting is called to confirm the amendment. Section 19 states:
Amendments can be made to this Act, from time to time, by resolution of the custom Council indicating the amendment required. A tribal meeting shall then be held to discuss the resolution for amendment.
[5] On or about January 4, 2001, the Custom Council received a request to amend the Election Act by a family representative. A copy of the request was provided to all family representatives, and a proposed amendment to the Election Act was placed on the agenda for the Custom Council meeting scheduled for Thursday, January 11, 2001.
[6] Notice of the Custom Council meeting was posted on and off of the reserve approximately one week before January 11, 2001. The on-reserve notices were posted in the administrative office, in the government office, in the wellness office, and in the school. The off-reserve notices were posted in Winnipeg at the Department of Indian and Northern Affairs, and in the offices of the Assembly of Manitoba Chiefs. It is by these notices, and by word-of-mouth, that members have traditionally been informed of upcoming band meetings. The applicants submit that there were several problems with the notices. They state that the proposal was not attached to the notices, that the Chief and Council were not advised of the proposal, and that only Custom Council members were aware of the nature of the amendment.
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[7] Eighteen of 21 family representatives attended the meeting on January 11, 2001. Approximately 60 tribe members also attended. Fifteen representatives voted in favour of the proposed amendment to reduce the term of office from four years to two years. The applicants take issue with the resolution, stating that it did not indicate if it applied to the current Chief and Council. The resolution to amend the Election Act was adopted, and a general tribal membership meeting was scheduled for Monday, January 22, 2001. Notices for the tribal meeting were posted on or about January 15, 2001. The applicants submit that no notice was given.
[8] Fourteen Custom Council family representatives, and approximately 100 tribe members attended the general membership meeting. A majority of those present voted to implement the amendment immediately. A copy of the resolution was delivered to the current Chief, and given to his executive assistant. The applicants submit that this meeting did not satisfy the requirement for a tribal membership meeting. They also submit that the minutes of the meeting do not show that a vote was taken. Finally, they submit that the resolution should not be applied retroactively.
[9] On January 29, 2001, the Electoral Officer called an election. She scheduled a nomination meeting for February 12, 2001, and the vote for March 2, 2001. Notices were posted for both events.
[10] On February 26, 2001, Mr. Justice Gibson dismissed a motion filed by the applicants for an interlocutory injunction to prevent the election.
[11] On March 2, 2001, the respondents were elected. On March 5, 2001, they assumed their offices. The respondents have been conducting the affairs of the band in conjunction with a third party manager since then.
3. Res Judicata
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[12] The leading authority on the doctrine of issue estoppel is the Supreme Court of Canada decision in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 in which Mr. Justice Dickson, citing the classic statement of Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) stated the principle at page 254:
...(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
i. The Question to be Decided
[13] The respondents submit that this matter was resolved on February 26, 2001, when Mr. Justice Gibson refused to issue an interlocutory injunction to stop the election. They submit that his decision effectively determined that the parties who won the election should take office in the ordinary course. At the time of the motion, Gibson J. was aware that an election was scheduled for March 2, 2001, that the applicants were not nominated for the election, and that the Election Act stated that the newly elected Chief and Council would take office on the day after the election. After reviewing all of this information, he refused to issue an interlocutory injunction, stating:
The requested relief by way of interlocutory injunction is dismissed, the Court being satisfied that the evidence of irreparable harm before it was nothing more than speculative.
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[14] The respondents submit that the issue before this Court is essentially the same issue which was before Gibson J. They submit that the fundamental nature of the question cannot be changed by advancing it in a different fashion. They submit the following excerpt from Hughes Land Co. v. Manitoba (1998), 167 D.L.R. (4th) 652 (Man. C.A.) at page 667 to illustrate the point:
[37] The application of issue estoppel does not require an exact duplication. The key issue as we have seen is simply whether the question to be decided in the second action was fundamental to the earlier decision. If so, the never-ending ingenuity of counsel to create new formulations and characterizations cannot displace the application of the doctrine of res judicata. An argument based on fairness will not be accepted by the Court in a second go-round simply because the matter has been dressed-up as "a new approach."... Simply "re-engineering" the claim is not good enough.
[15] This Court agrees with the respondents. Gibson J., by refusing to grant the interlocutory injunction, must be taken to have understood that the election would proceed, and that the winners would take office.
ii. Finality of the Judicial Decision
[16] The respondents submit that Mr. Justice Gibson's decision on February 26, 2001, was a final decision for the purposes of an interlocutory injunction. This Court agrees with the statement in Ward v. Dana G. Colson (1994), 24 C.P.C. (3d) 211 (Ont. Gen. Div.) at page 218:
[12] I am satisfied the issue estoppel is not eliminated as an issue because O'Brien J.'s order was made in the context of an interlocutory application. A decision in an interlocutory application is binding on the parties, at least with respect to other proceedings in the same action. I agree with the submission that the general principle is that it is not open for the court, in a case of the same question arising between the same parties, to review a previous decision not open to appeal. If the decision was wrong, it ought to have been appealed within the appropriate time-frames. This principle is not affected by the fact that the first decision was pronounced in the course of the same action. See David Diamond v. The Weston Realty Company, [1924] S.C.R. 308 (F.C.C).
[17] Therefore, for the purposes of an interlocutory injunction, this Court accepts that Mr. Justice Gibson's decision was final.
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iii. Same Parties or their Privies
[18] On March 2, 2001, Madam Justice Hansen permitted the applicants to add the Chief-elect and the Council as respondent parties. Based on these additions, the applicants submit that this application now becomes a first request for relief against new parties. The Court does not agree with this proposition.
[19] During the initial application for injunctive relief, the applicants named the Custom Council members, and the Electoral Officers as respondents in an attempt to stop the election. Merely adding the names of those who won the election, the existence of whom were known, but the identities of whom could not have been ascertained before the election, does not alter the fact that a commonality of interests exists between the respondents. This principle is discussed in Ontario v. National Hard Chrome Plating Co., [1996] O.J. No. 93 (Ont. Gen. Div.):
3. The "Same Parties Element"
[23] The issue estoppel branch of res judicata can apply even where parties are not identical. This will essentially be the case where the court examines the history of the proceedings between the parties, and in light of such examination, determines that they are not different parties in substance: See Martin-Brower of Canada Limited v. Ontario (Regional Assessment Commission, Region No. 15), [1993] O.J. No. 1848 (G.D.) at p. 9, 16; Donmor Industries, supra, at p. 505.
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[24] With respect to the issue as to whether the defendants can be held to be "the same party" as in the earlier action, the court must consider that the additional defendants were privy to the first action. This is based on the fact that such parties could clearly have been added to the first action and that it is not a sufficient basis to relegate the matter in light of the fact that the directors are now named personally. In Verlysdonk v. Premier Petrenas Construction Company Limited (1987), 60 O.R. (2d) 65 (H.C.J.) at p. 69, the principle is asserted that in determining whether a party is "privy" to an earlier proceeding, a privy is "a person having a participation in some act so as to be bound thereby for a participation in interest." In determining whether a party had a participatory interest in the outcome of the proceeding, the courts have held that the essential question to be determined is whether the outcome of the action could affect the liability of such parties. The additional defendants named in the claim were officers and directors of either of the two companies and therefore could have on the same arguments raised in the second action been liable on that basis in the first action.
[25] It would be a clear abuse of process if litigants could avoid the doctrine of res judicata by merely adding as parties others against whom the initial claim could have been taken. The additional defendants in the current action were known or should have been known to the plaintiff at the time of the first action: See Reddy v. Oshawa Flying Club, supra, at p. 6-7.
[26] While the plaintiff in the second action has expressed in a manner somewhat different from the first action, it would be specious to raise the argument that there is no commonality of the plaintiff.
[27] Therefore, the third and final requirement of Angle has been met.
[20] The newly added respondents, as candidates in the election, were directly affected by the outcome of the February 26, 2001 hearing, and are therefore privies of the original respondents. A privy, according to the Dictionary of Canadian Law, Carswell, 2nd edition (Dukelow & Nuse, eds.), is "someone who partakes or has an interest in some action or thing". The same source defines res judicata as "a final judicial decision", noting that: "three requirements for a finding of res judicata are confirmed by the Manitoba Court of Appeal in Solomon v. Smith [1988] 1 W.W.R. 410... They are: 1. That the same question has previously been decided; 2. That the judicial decision which is said to create the estoppel was final; and 3. That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. Newman v. Newman (1990) 26 R.F.L. (3d) 313 at 318, 65 Man.R.(2d) 294 (Q.B.)." These definitional maxims require sensible interpretation and not blind adherence. "Final" in the context of an interim or an interlocutory injunctive order means the contrived finality natural to such order ie. Final until the trial or hearing which dissolves the order. Failure or refusal to comply with such finality is punishable on contempt of court, but the adverse party is not bound by finality meaning eternity, or no judicial reconsideration.
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iv. Summary
[21] This Court determines that the principle of res judicata applies to this motion for an interlocutory injunction. However, the applicants submit that they bring new evidence which would have changed the outcome of the original motion, and which was not then available.
4. New Evidence
[22] In Cercast Inc. v. Shellcast Foundries Inc. (No. 2) (1972), 8 C.P.R. (2d) 280 (T.D.), Mr. Justice Walsh stated at page 282:
While I would not go so far as to say that when an application for an interlocutory injunction has been refused and this refusal has not been appealed, no further application for an interlocutory injunction can be made and that matters must remain in status quo until trial on the merits, it would nevertheless be correct to say that any further application for an interlocutory injunction would have to depend on new evidence becoming available, which evidence was not only not available to plaintiffs at the time of the hearing of the original application for interlocutory injunction, but which would also have affected the decision to refuse to grant such injunction had this evidence been before the Court at the time such decision was made.
(emphasis added)
This passage, in effect, describes the plight of the applicants herein.
[23] In Canadian Tire Corp. v. Pit Row Services Ltd. (1987), 13 F.T.R. 145 (T.D.), Associate Chief Justice Jerome stated at page 145:
[2] The relief sought is in essence to have me reopen or reconsider the Plaintiff's application for interlocutory injunctive relief. It is obvious, of course, that that is the most extraordinary kind of disposition of any kind of matter adjudicated upon by the court. It, of course, requires material in support which would have to be also of an extraordinary nature. It is quite likely that such an application might succeed in the face of factual evidence that indicates that the factual basis for the original disposition was substantially incorrect, not simply a matter of shade of meaning or degree. It would have to be substantially different. The true facts would have to be shown to be so substantially different from the facts upon which the original disposition was made that it would be, in my opinion, extraordinary.
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[3] In the alternative, of course, it would be appropriate to suggest that a party having obtained the earlier disposition by misleading the court would be open to this kind of order.
[4] Finally, of course, although this certainly would be much more complex, interlocutory relief with the disposition of that earlier application is really an adjudication as of the circumstances of that time, and should the circumstances change so drastically that the factual underpinning of the earlier disposition is simply no longer valid, it is not only now, of course, but always open to a party to come to the court to repeat or, essentially to start a fresh application for the same relief, provided, of course, as I say, the factual circumstances are so different that the earlier disposition is no longer valid, no longer bears a relationship to reality.
(emphasis added)
[24] Therefore, for this Court to issue an interlocutory injunction, the applicants must demonstrate that new evidence now exists which would have affected Mr. Justice Gibson's decision to refuse to grant an injunction. In this Court's opinion, the applicants have failed to discharge this burden. The question of misleading the Court is not actively in issue, herein.
[25] Regarding the well-known tri-partite test for interlocutory injunctions from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Gibson J. stated that the applicants' evidence of irreparable harm was speculative. This means that the first branch of the test, that a serious issue exists, was met. The applicants presented evidence to this Court which they submit would have changed Mr. Justice Gibson's order. However, this evidence involved the existence of a serious issue, which was implicitly accepted by Gibson J., and which was expressly conceded by the respondents, through counsel. The Court should not review this evidence, because it involves the issues which are at the core of the application for judicial review. Moreover, the nature of this evidence was not substantially different from that which was before Gibson J., upon which he dismissed the application for an interlocutory injunction.
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[26] Therefore, it is left to the applicants to present evidence of irreparable harm of a sufficient magnitude which would have changed the ruling of Gibson J. The applicants submit that many administrative matters have been postponed because of the uncertainty surrounding the legality of the election, including inquiries into trust fund use, negotiations for municipal services and housing construction, and the adjournment of a legal proceeding in which the band is a party. The postponement of these matters hardly constitutes irreparable harm, given that they are temporarily suspended until the resolution of the conflict on the merits.
[27] The respondents also submit that irreparable harm occurred when the band office was blockaded, when the locks to the band office were changed, and when the telephone service to the band office was cancelled. None of these submissions merits serious consideration. The band office was blockaded by a non-party, and locks and interruptions to telephone service hardly amount to irreparable harm.
[28] The applicants submit that the band was placed under third party management during this dispute. The respondents submit that the applicant Chief was instrumental in appointing a third party manager, and that a remedial management plan had been formulated for months. Given that the band will remain under third party management until the situation is finally resolved, this is not a relevant consideration.
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[29] Finally, the applicants submit that video lottery terminal profits are being used for personal purposes by the respondents. If such be so, the law can be invoked to remedy the matter. As managers of the account, the respondents submit that they have the authority to disperse these funds on matters of interest to the band. They submit and admit that because the Department of Indian and Northern Affairs is refusing to pay them until this matter is resolved, the money is being used as a loan for living expenses, for which they have signed guarantees. The Supreme Court of Canada held in RJR-MacDonald, supra, at 341, that irreparable harm is "harm which either cannot be quantified in monetary terms or which cannot be cured." Given that the amounts have been guaranteed and will be repaid upon resolution of this dispute, this Court finds that no irreparable harm is likely to occur.
[30] Like Gibson J., this judge finds that the evidence of irreparable harm to be speculative. The applicants submit that at stake is the band's confidence in the election process. However, there is no evidence that the situation will improve by varying Mr. Justice Gibson's order. In fact, more uncertainty may be created under the circumstances. Therefore, having found that there is no new evidence which would have caused Mr. Justice Gibson's decision to refuse the original motion for an interlocutory injunction to be varied, or reversed, this Court dismisses the applicant's motion.
[31] Richard Hayden, whose name appears among those of the first respondents, appeared personally in the role of an applicant rather than a respondent. He brought to the Court's attention allegations made to the Court for the first time. He seemed to think that this Court could engage counsel for him.
[32] Finally, the respondents submitted that the applicants came to this Court without clean hands, and should be deprived of the equitable remedy which they seek. Given this Court's conclusions, this issue does not need to be considered.
5. Conclusion
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[33] This application for an interlocutory injunction is dismissed. The applicants shall pay costs in any event of the cause. Costs shall be assessed at the high end of Column III in Tariff B in favour of the respondents, except Richard Hayden, in each category to cover actual party and party costs.
Judge
OTTAWA, Ontario
July 11, 2001