Federal Court Decisions

Date: 20061005

Docket: T-1649-06

Citation:  2006 FC 1187

Ottawa, Ontario, October 5, 2006

PRESENT:     The Honourable Barry Strayer, Deputy Judge

BETWEEN:

IRVIN McIVOR, DENNIS McIVOR,

and HERMAN RICHARD

Applicants

and

THE ATTORNEY GENERAL OF CANADA

and THE MINISTER OF INDIAN AFFAIRS (CANADA)

Respondents

REASONS FOR ORDER

Introduction

[1]               This proceeding is for a motion for an interlocutory injunction to stop an election for the Sandy Bay Band Council (“Band”) to be held on October 11, 2006: for an injunction to stay the effect of an order in council which set aside the election of the Applicants as Band councillors at an election held on September 8, 2005, or in the alternative an order reinstating them as councillors; and an interlocutory injunction staying the appointment of a Third Party Manager for the Band.  I heard the motion on September 29, 2006 and later that day dismissed it for reasons which were to follow.  These are those reasons.

Facts

[2]               A Band election was held on September 8, 2005 at which time Irvin McIvor one of the Applicants was elected Chief, and the other Applicants, Denis McIvor and Herman Richard, together with two other members were elected councillors.  As authorized under paragraph 79(a) of the Indian Act (“Act”), R.S., 1985, c. I-5, and sections 12-14 of the Indian Band Election Regulations, C.R.C. 1978, c. 952, an appeal was submitted on October 6, 2005, by an unsuccessful candidate at the elections, complaining of irregularities in the conduct of the elections, principally arguing that certain Band members had received payments for their votes.  As required by subsection 12(2) of the Regulations, copies of the appeal and supporting documents were sent to each of the candidates and they had an opportunity to respond.  Subsequently, the Minister of Indian Affairs (“Minister”) appointed an investigator who was required by law to submit a detailed report of the investigation to the Minister.  Subsequently, the Minister recommended to the Governor in Council that the September 8, 2005 election be set aside because of corrupt practices, such action being authorized by paragraph 79(a) of the Act.  On August 29, 2006, the Governor in Council adopted an order in council setting aside the election.  Shortly thereafter the Applicants filed an application for judicial review of the order in council and this motion for injunctions to stop the holding of the new election etc. until the judicial review is heard and determined.

[3]               Further relevant facts will be referred to in the analysis.

Analysis

[4]               I have applied the established criteria for the issue of such injunctions: namely, I have to determine:

a.               whether there is a serious issue to be determined in the judicial review;

b.               whether the grant of, or refusal to grant, the injunctions will cause irreparable harm to one side or the other; and

c.               does the balance of convenience favour the grant or refusal of the injunctions

Serious Issue

[5]               I have concluded that in the circumstances I must go further in the analysis of the issue then simply decide whether it is vexatious or frivolous.  In this case, one order requested would have the effect of reinstating the Applicants as Chief and Councillors for an indefinite period, which is the remedy they seek in the judicial review.  I think this aspect of the case falls within the exemption made by the House of Lords in NWL Ltd. v. Woods, [1979] 1 WLR 1294 and I must give some consideration to the merits of the judicial review application. 

[6]               There are important challenges to the grant of the remedies sought in the judicial review.  There is a possible obstacle to the Applicants obtaining an injunction against the Minister.  To do so would require that he be shown to have done something beyond his powers:  see, for example, Saugeen Band of Indians v. Canada (Minister of Fisheries and Oceans), [1992] 3 FC 576 (FCTD) at paras. 29-35.  It is not clear to me that the Applicants are alleging that the Minister acted in excess of his powers.  Another fundamental problem for the Applicants will be that their principle complaint is that the order in council was passed by the Governor in Council without according them adequate fairness in procedure.  In fact, they were given notice of the appeal of the election and copies of all documents filed in support of the appeal, and they had an opportunity to respond in writing before the Governor in Council considered the matter.  However, they complain that they should have been made aware of the investigator’s findings and of other evidence beyond the material provided to them in the form of the complaints and supporting documents.  To attack the decisions of the Governor in Council on procedural grounds could be very difficult:  see, for example, Canada v. Inuit Tapirisat [1980] 2 F.C.R. 735.  The Applicants placed a great deal of reliance on a decision of this Court in Gull Bay First Nation v. Canada (Attorney General), [2005] F.C.J. No. 1332, a decision rendered by Justice François Lemieux on August 10, 2005 in which he granted an interlocutory injunction in somewhat similar circumstances, halting an election and reinstating nine of twelve councillors who had been disqualified by the fact that their last election had been set aside by order in council.  I think that there are several grounds upon which that case can be distinguished.  It involved an appeal under paragraph 79(c) of the Act against the last election on the alleged grounds that six of the twelve councillors elected were not residents on the reserve.  It was concluded that only three councillors were disqualified but the Governor in Council nevertheless set aside the election of all twelve councillors.  In the present case the appeal which brought about the order in council was made under paragraph 79(a) of the Act and was an attack, not on the eligibility of certain councillors, but on the validity of the election process itself.  Justice Lemieux in his remedies only reinstated the nine councillors who were not challenged as to eligibility.  In that case a Charter issue was also being raised as to the residency requirement, which of itself involved a serious issue given the state of recent jurisprudence on this matter.  In that case the Crown did not seriously challenge the facts alleged by the applicants.  There was an assumption that an unfair procedure had been involved because the Applicants had not been notified of the contents of the investigation.  The issue of the jurisprudence in the Inuit Tapirisat case, above, was apparently not raised.

[7]               While I need not and do not attempt to decide the merits of the judicial review and have not denied the motion for an injunction on this basis, to the extent that I was obliged to inquire deeper into the merits than would normally be the case, I find them highly debatable.

Irreparable Harm

[8]               I am not satisfied that the Applicants will suffer irreparable harm if the order in council continues to operate pending the judicial review.  Although the Applicants filed evidence indicating serious disruption of Band business and financial affairs if the order in council remains in effect, such evidence was of a very general nature and some of it probably inadmissible as opinion evidence or hearsay without identification of its source.  Subsequently, the Respondent filed several affidavits from staff of the Department of Indian Affairs (“Department”) which detailed the steps that have been taken jointly by the Department and the Third Party Manager which is in place to take care of virtually all of the problems foreseen in the affidavits filed by the Applicants.  Further, although the Applicants when they filed the materials were not certain as to when the election would take place, it has now been confirmed for October 11, 2006, some twelve days after the date of my order dismissing the motion.  The evidence also is that in the meantime a nomination meeting has been held for candidates for these elections and the three Applicants in this proceeding have all been nominated as candidates.  They will have their opportunity to once again assume office if they enjoy the continuing support of Band members. 

[9]               The Applicants in their affidavits and submissions speak of the harm that has been done to their reputations by the order in council and its continuation.  As I noted above, this proceeding which was taken under paragraph 79(a) of the Act is based on the protection of the integrity of the election system free of corrupt practices.  Nothing in the order in council setting aside that election identifies in any way these particular Applicants.  To the extent that any of them have been named in the appeal process by other members of the Band, the effects of those allegations will not be undone by an interlocutory injunction stopping the operation of the order in council.  In rather similar circumstances, Justice Max Teitelbaum in Simon v. Canada (Minister of Indian Affairs), [1999] F.C.J. No 1736, refused an injunction because he was satisfied that the applicants had not shown any irreparable harm if new elections took place.  He pointed out that on the other hand if he were to stop the new elections, and keep the applicants in office as councillors until the judicial review is determined, and if the judicial review were dismissed, he would then have kept in office councillors disqualified by order in council.  I have also kept this consideration in mind.

[10]           I therefore found the lack of insufficient evidence of irreparable harm in the present case to be the most important factor in my decision to dismiss the motion.

Balance of Convenience

[11]           I concluded that the most important principle here, as enunciated by the Supreme Court in Manitoba v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, paragraphs 36-90 is that in balancing the interests of private individuals versus the public interest in allowing public authorities to carry out public policy, preference must be given to the public interests.  In this case, Parliament has provided the Governor in Council with a power of oversight of certain Band elections.  It is no doubt a power to be used sparingly.  Nor is it necessarily the wisest or fairest method of oversight.  But no one has suggested it is unconstitutional and while the law remains as it is I felt more importance should be attached to the exercise of this public authority than to the private interests of Band councillors.

Conclusion

[12]           For these reasons, I dismissed the motion for the injunctions or reinstatement, with costs.

"B. L. Strayer"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-1649-06

STYLE OF CAUSE:                          IRVIN McIVOR ET AL. v. THE ATTORNEY GENERAL OF CANADA ET AL.

MOTION DEALT BY TELECONFERENCE

PLACE OF HEARING:                    OTTAWA, ONTARIO

DATE OF HEARING:                      SEPTEMBER 29, 2006

REASONS FOR ORDER:               JUSTICE STRAYER

DATED:                                             October 5, 2006

APPEARANCES:

SOLICITORS OF RECORD: