Date: 20041216
Docket: T-1660-04
Citation: 2004 FC 1750
BETWEEN:
GARY GOPHER
Applicant
and
CHIEF BRIAN MOCCASIN, SAULTEAUX FIRST NATION BAND COUNCIL,
and STANLEY MOCCASIN
Respondents
[1] Gary Gopher was elected to the Saulteaux First Nation Band Council. He was purportedly removed at a Band Council meeting held 1 September 2004, and a by-election to replace him was scheduled for 29 September 2004. He has brought on an application for judicial review of that decision and, pending the outcome thereof on the merits, sought an injunction against the by-election and a declaration that he is still a Band Council member until the Court orders otherwise.
[2] There are two types of injunctions which can be issued during a process. The first is an interim injunction, usually granted on an ex parte basis, which is good for no more than 14 days (Rule 374). When this matter first came before me as Motions judge, I refused to hear it on an ex parte basis. Although the respondents were thereafter served, they did not appear. I was satisfied that Mr. Gopher had made out a case, but granted an interim injunction which expired 12 October 2004.
[3] Mr. Gopher thereafter duly applied for the second injunction, an interlocutory injunction. There have been scheduling delays attributable to the respondents, but they have now appointed a counsel who has appeared. At the hearing yesterday I granted the interlocutory injunction until the application for judicial review of the Band Council decision is decided on the merits.
[4] I was swayed by the fact that the Saulteaux First Nation elections are governed by their Band Custom Election Act. Section 7 thereof provides:
That a meeting so convened can proceed to amend Band Custom or to remove elected officials provided that at least 100 electors attend the meeting. If 100 electors attend the meeting, a simple majority of those present shall be sufficient to pass any resolution.
Less than 100 electors attended the meeting.
[5] The general principles applicable to an interlocutory judgment are well established. As set out in such cases as RJR-Macdonald Inc. v. Canada (AG), [1994] 1 S.C.R. 311, the applicant must satisfy a three-part test. He must demonstrate that there is a serious question to be tried, that he will suffer irreparable harm if the relief is not granted and that the balance of convenience is in his favour.
[6] There is a fairly low threshold on the first part of the test. Absent pure questions of law, there is a serious issue to be considered on the merits if the matter does not appear to be frivolous or vexatious. Mr. Gopher certainly has raised a serious issue in my opinion. The respondents pointed out that the Band Custom Election Act provides for an appeal process. However, it appears to me that the appeal process is limited to meetings which were duly constituted in the first place. For instance, if at least 100 electors had been present at the meeting, it would seem Mr. Gopher's recourse would have been an appeal, not an application for judicial review.
[7] As to irreparable harm, the Act provides for a two-year term, renewable once. A council member must then stand back at least two years before running for office again. Thus, given the temporal nature of the position, I have no difficulty finding that Mr. Gopher would suffer irreparable harm if the decision under review turns out to be wrong.
[8] Likewise, on the balance of convenience I find in Mr. Gopher's favour.
[9] This is not to say that Mr. Gopher will succeed when the judicial review is heard on the merits. The respondents rightly point out that there are some ambiguities in the Band Custom Election Act, which ambiguities might be resolved by evidence of what has gone on in the past. At the urging of the Court, the parties jointly asked that the case be put under special management. Hopefully, a schedule can be worked out so that the application can be heard on the merits fairly shortly.
[10] Mr. Gopher gave the customary undertaking as to damages when the interim injunction was granted, and renewed that undertaking for the purposes of the interlocutory injunction, which should deal with the applicant's concerns that I ordered Mr. Gopher is entitled to the emoluments of office until the Court rules otherwise.
"Sean Harrington"
Judge
Ottawa, Ontario
December 16, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1660-04
STYLE OF CAUSE: GARY GOPHER
AND
CHIEF BRIAN MOCCASIN, SAULTEAUX FIRST NATION BAND COUNCIL, and STANLEY MOCCASIN
PLACE OF HEARING IN PERSON: OTTAWA, ONTARIO
VIA TELECONFERENCE: SASKATOON, SASKATCHEWAN
DATE OF HEARING: DECEMBER 15, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: DECEMBER 16, 2004
APPEARANCES:
Anthony Merchant FOR APPLICANT
John Kwok FOR RESPONDENTS
SOLICITORS OF RECORD:
Merchant Law Group FOR APPLICANT
Regina, Saskatchewan
Kwok Law Office FOR RESPONDENTS
Saskatoon, Saskatchewan