Calgary, Alberta, June 7, 2007
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
Applicants
- and -
SALT RIVER FIRST NATION #195 also known as SALT RIVER INDIAN BAND #759,
SALT RIVER FIRST NATION COUNCIL and COUNCILLORS CHRIS BIRD, TONI
HERON, SONNY MCDONALD and MIKE BEAVER
Respondents
REASONS FOR ORDER AND ORDER
[1] By this motion the Applicant seeks the following relief:
1. an Order for an interlocutory injunction enjoining and
prohibiting the holding of any by-election for Chief of the
Salt River First Nation #195 (“SRFN”) pending the
determination of Martselos’ application for judicial review
of the SRFN’s May 7, 2007 Band Council Resolution
purporting to remove Martselos as Chief; and
2. an Order appointing a Case Management Judge to deal with
all matters arising prior to trial or the hearing of this
application.
Background Facts
[2] The Applicant was duly elected Chief of the Salt River First Nation (“SRFN”) on a by-election held on April 30, 2007 pursuant to the SRFN Customary Election Regulations (the “Regulations”). The election results were not challenged.
[3] On May 7, 2007, four Councilors of the SRFN passed a Band Council Resolution purporting to remove the Applicant from the office of Chief of the SRFN (the “Resolution”). The Resolution essentially charged the Applicant with engaging in conduct contrary to the customs, constitution and orderly administration of the SRFN. The resolution listed 21 different incidents involving the Applicant which Council considered grounds for removal form Office within the provisions of s. 19.1 of the regulations.
[4] On May 16, 2007 the Applicant filed an application for judicial review challenging the legality of the resolution, seeking, inter alia, an order quashing the resolution and a declaration that the Applicant is the Chief of the SRFN. The application was made on the following stated grounds:
1. The Applicant was declared elected Chief of the SRFN on
April 30, 2007; and, pursuant to section 3.4 of the
Customary Election Regulations of SRFN immediately took office as Chief;
2. The Respondents breached their duty of procedural fairness owed to the Applicant by failing to give her notice that the meeting of May 7, 2007, where the BCR [Band Council Resolution] was passed could result in her removal from office as Chief, and in failing to give her an adequate opportunity to defend herself;
3. The meeting was not, in any event, duly convened, particulars of which include: notice of the meeting was not given to the Applicant or to all members of Council; and, the Applicant and all members of Council did not waive notice of the meeting; the Applicant did not prepare an Agenda in advance of the meeting, and the Applicant must prepare and distribute an Agenda in advance of each meeting to each member of council;
4. The Respondents did not have jurisdiction under the Customary Election Regulations of SRFN to remove the Applicant from office on the grounds stated in the BCR;
5. The grounds stated in the BCR are grossly inaccurate and untrue;
6. Such further or other grounds as Counsel may advise and this Honourable Court permit.
[5] The Applicant by this motion seeks injunctive relief pending final disposition of the above application for judicial review. In support of her motion the Applicant filed affidavit evidence challenging the assertions made in the resolution as untrue and inaccurate.
[6] The Respondents, in response to the motion have filed a total of 15 affidavits which provide an evidentiary basis in support of the grounds for removal enumerated in the resolution.
[7] The evidence on the record regarding the procedural fairness issues raised by the Applicant in her underlying application is conflicting. Particularly, in respect to the issue of notice of the Resolution to remove the Applicant from office.
[8] In order to succeed on their motion, the Applicant must establish that her attack on the resolution removing her, raises a serious issue, that the balance of convenience operates in favour of postponing the by-election, and that irreparable harm would result if the by-election was held prior to a determination being made as to the legality of the resolution removing the Applicant from elected office.
Serious issue
[9] At the hearing counsel for the Respondents conceded that a serious issue is raised in the underlying application. I agree. There is at least one serious issue in the underlying application. Given the low threshold to be met in order to establish a serious issue in an application for injunctive relief, I am satisfied, for the purpose of this motion, that the removal of the Applicant as Chief “on improper grounds or in the absence of satisfactory confirmation of the grounds” constitutes a live issue in the underlying application.
Balance of convenience
[10] In assessing the balance of convenience, the Court must take into account the public interest which in this instance must be assessed by considering the needs and best interest of the SRFN.
[11] The balance of convenience is “a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits”. (Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 (QL), at paragraph 35.
[12] There is considerable uncertainty in the SRFN in respect to the status of the community’s elected leadership charged with the responsibility of governing the community. This situation must not be further exasperated.
[13] By granting interim order prohibiting the by-election until the issues raised in the underlying application are determined, I would temporarily suspend what would otherwise be a validly ordered by-election. By granting the interim order I would be preserving the status quo until the issues raised in respect to the validity of the Resolution removing the Applicant are determined. While less than ideal, preserving the status quo would allow the legality of the resolution to be determined and an eventual by-election to be re-scheduled and held if necessary. Further, the affairs of the SRFN can continue to be conducted by the Acting Chief and counsel. There is no evidence to suggest otherwise.
[14] I reject the contention that granting the relief sought would be disruptive to the community. In my view the situation would be far more uncertain and more harm would result to the SRFN if the by-election was held and the Applicant was ultimately successful in her application. The community would then have to cope with the circumstance of a duly elected Chief having to vacate his or her office. In the specific circumstances of this case where the last election for a chief was held a little over one month ago, and where the results of that election were not challenged. I am of the view that the public interest and the interest of the SRFN would be better served by preserving the status quo and prohibiting the holding of the by-election until the issues raised in the underlying application are settled. The balance of convenience therefore favors this option.
Irreparable Harm
[15] The position of Chief is one of great honour within a first Nation and removal from that office is not compensable in money damages. The office of Chief is political, filled by valid election, with attendant responsibilities. Without the injunction the SRFN will be asked to elect a new Chief in a by-election called under the Regulations which prohibit the Applicant’s participation. In the circumstances, I am satisfied that the Applicant would suffer irreparable harm should the interlocutory injunction not be granted.
[16] For the above reasons the motion will be granted.
ORDER
THIS COURT ORDERS that:
1. An interlocutory injunction enjoining the SRFN from holding a by-election for Chief, pending this Court’s determination of the underlying application for judicial review.
2. The Applicant shall have her costs on this motion.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-809-07
STYLE OF CAUSE: FRIEDA MARTSELOS v. SALT RIVER FIRST NATION #195 also known as SALT RIVER INDIAN BAND #759, SALT RIVER FIRST NATION COUNCIL and COUNCILLORS CHRIS BIRD, TONI HERON, SONNY MCDONALD and MIKE BEAVER
PLACE OF HEARING: Calgary, Alberta
APPEARANCES:
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Mr. Walter J. Pavlic, Q.C. Ms. K. Colleen Verville
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Mr. Christopher Harvey
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SOLICITORS OF RECORD:
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Parlee McLaws LLP Edmonton, Alberta
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MacKenzie Fujisawa LLP Vancouver, British Columbia |