Federal Court Decisions

     T-2158-96

BETWEEN:

     PETER JOSEPH YELLOWQUILL,

     Applicant,

     - and -

     THE ATTORNEY GENERAL FOR CANADA,

     Respondent.

     - and -

     CERTAIN ELDERS OF THE LONG PLAIN FIRST NATION, being:

Tony Myran      Wally Meeches      George Myran

Violet Peters      Max Merrick      Arthur Meeches     

George Hobson      Eliza Longclaws      Nora Peters

Grant Woods      Rose Assiniboine      Pearl Pelletier     

Florence Myran      Iona Prince      Philip Longclaws

Andrew Perswain      David Perswain      Johnny Perswain

Clara Paul      Flora Merrick      Phyllis Longclaws

Mary Jane Daniels      Gladys Meeches      Louis Myran

Delores Meeches      Lena Meeches      Jean Meeches

Alice Meeches      Dauphin Myerion      Doreen Prince

Bruce Myran      Flora Houle      Christina Myran

Isabel Daniels      Daisy Myran      Howard Houle

Grace Daniels      Bessie Meeches      Shirley Contois

Lois Houle

     Respondents

     - and -

     MEMBERS OF THE ELECTION COMMITTEE

     LONG PLAIN FIRST NATION, being:

     ROBERT PETERS, TRUDY HOBSON, ELVIS HOULE,

     IVY MYRAN, BARBARA LONGCLAWS,

     MARGE PELLETIER, MARGARET MEECHES

     Respondents,

     - and -

     MARGARET ASSINIBOINE-MYRAN,

     in her capacity as Election Officer,

     Respondent,

     - and -

     THE FORMER COUNCILLORS OF

     THE LONG PLAIN FIRST NATION, being,

     MARVIN DANIELS, DAVID MEECHES and

     MARY PERSWAIN,

     Respondents,

     - and -

     MARVIN DANIELS,

     in his capacity as Holder of the Disputed

     Office of Chief of the Long Plain First Nation,

     Respondent.

     REASONS FOR ORDER

     [Delivered from the Bench at Winnipeg, Manitoba,

     on December 19, 1996, as edited]

ROTHSTEIN, J.

    

     The issues before the Court are:

(1)      A motion to dismiss the application for judicial review on the grounds there is an adequate statutory appeal. See C.P. v. Matsqui, [1995] 1 S.C.R. 1. In view of my decision, it is not necessary to deal with this motion.

(2)      Determination of the decision with respect to which the judicial review is sought.

(3)      If necessary, a motion by the applicant to extend the time for bringing the judicial review.

     The applicant had been Chief of the Long Plains First Nations Band. He was last elected in 1994 for a four-year term. This judicial review concerns an election called partway through the four-year term as a result of the decision of the Elders of the Band dated May 24, 1996 and/or a resolution of the Band Council dated June 3, 1996. Pursuant to those decisions, on September 12, 1996 the Electoral Committee of the Band set November 5, 1996 as the date of the election. That election has been held and Marvin Daniels has been elected Chief.

     The applicant's motion seeking judicial review was filed on September 30, 1996. The applicant seeks to quash the decisions of the Elders, Band Council and Electoral Committee and to have the election of November 5th vacated with the result that he would resume his position as Chief of the Band.

     The parties are agreed that the relevant decisions are either the one of the Elders on May 24, 1996 or the one of the Council on June 3, 1996. The respondents say it is the May 24th decision, the applicant says it is the June 3rd decision. They agree that the decision of September 12, 1996 of the Electoral Committee was dependant on one or both of the prior decisions. It is the decision that interferes with the applicant's four-year term as Chief (not to expire until 1998) that is at issue and that decision had to be either the one made by the Elders or by the Band Council.

     The respondents say that the applicant's application of September 30, 1996 is out of time as it is not brought within 30 days of the May 24 or June 3, 1996 decisions. I therefore turn to the extension of time application. The evidence is that the applicant was present at the May 24, 1996 meeting of Elders and stated at that meeting he would challenge the Elders' decision in the Federal Court. He therefore knew of that decision and has no excuse for late filing with respect to it. However, the applicant argued that he had not seen the Band Council decision of June 3, 1996 (the one that he says is relevant) until after September 12, 1996 and this was the reason his judicial review application was not filed until September 30, 1996. However, in cross-examination on his affidavit, it appeared that he was being evasive on the question of when he became aware of the June 3, 1996 Band Council Resolution. In questioning by the Court on the motion, the applicant also was evasive, continuing to attempt to leave the impression he was not aware of the June 3, 1996 resolution until after September 12, 1996.

     However, in the course of argument, the Court's attention was drawn to a letter referred to in the material dated June 17, 1996 from the applicant "refuting the BCR and raising objection to the points within". That letter was then produced to the Court. Indeed, the applicant had seen the Band Council Resolution on/or before June 17, 1996 and his letter of that date addresses its contents. The applicant has attempted to mislead the Court.

    

     The applicant has no valid excuse as to why an extension of time should be permitted with respect to either the Elders' decision or the Band Council Resolution. In any event, because of the applicant's conduct in attempting to mislead, the Court will not exercise its discretion to extend time. Because the applicant may have an arguable case on the merits, it is regrettable that he did not act in a timely manner and that he has conducted himself in a manner so as to disqualify himself from the Court exercising its discretion to extend time. The application to extend time is dismissed and the judicial review is dismissed.

     The applicant's conduct in Court constitutes special circumstances justifying an award of costs. Costs of $200 inclusive of disbursements are awarded to each of the three groups of respondents represented by counsel at the proceedings on December 19, 1996 for a total of $600. The award of costs is low and in future the Court will not hesitate to award increased costs in similar circumstances.

     Marshall Rothstein

    

     J U D G E

OTTAWA, ONTARIO

JANUARY 13, 1997