BETWEEN:
and
HORSE LAKE FIRST NATION COUNCILLOR
ALLAN HORSEMAN, COUNCILLOR BRIAN HORSEMAN,
COUNCILLOR MICHAEL HORSEMAN AND
COUNCILLOR EUGENE HORSEMAN
Heard at Edmonton, Alberta, on June 10, 2013.
Judgment delivered at Ottawa, Ontario, on June 17, 2013.
REASONS FOR JUDGMENT BY: MAINVILLE J.A.
CONCURRED IN BY: PELLETIER J.A.
TRUDEL J.A.
Docket: A-38-13
Citation: 2013 FCA 159
CORAM: PELLETIER J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
CHIEF RICHARD HORSEMAN
Appellant
and
HORSE LAKE FIRST NATION COUNCILLOR
ALLAN HORSEMAN, COUNCILLOR BRIAN HORSEMAN,
COUNCILLOR MICHAEL HORSEMAN AND
COUNCILLOR EUGENE HORSEMAN
Respondents
REASONS FOR JUDGMENT
[1] The appellant is the Chief of the Horse Lake First Nation, a band within the meaning of the Indian Act, R.S.C. 1985, c. I-5. He has brought an application for judicial review in the Federal Court claiming that the respondent councillors of the First Nation improperly convened a special meeting of the band council on December 3, 2012 and, at that meeting, improperly removed his spouse from her position with a band controlled corporation and withdrew her signing authorities for that corporation.
[2] Shortly after filing his application for judicial review, the appellant brought a motion for an interim injunction pursuant to Rule 373 of the Federal Courts Rules, SOR/98-106 requiring the First Nation to restore banking and signing authorities as they were, to stay all dismissals of staff, stay all contracts with companies owned by band councillors, to pay per capita distributions equally to all band members, and to provide notice of all meetings of the band council and band controlled corporations to the appellant.
[3] This motion for an interim injunction was dismissed by De Montigny J. (the “Judge”) in an unreported order dated January 10, 2013. The Judge found that he did not have jurisdiction to grant the requested injunction, and that, in any event, the test for an interlocutory injunction set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 had not been met. The appellant now appeals to our Court.
[4] Under section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7, but subject to section 28, the Federal Court has exclusive original jurisdiction to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission and other tribunal, and to hear and determine any application or other proceeding for similar relief against a federal board, commission or other tribunal.
[5] The focus of judicial review is to quash invalid government decisions or require government to act or prohibit it from acting by a speedy process. Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585 (“TeleZone”) at para. 26. Judicial review suits the litigant who wishes to strike quickly and directly at the action (or inaction) complained about: Ibid. As noted in TeleZone at para. 32, the Federal Courts Act is designed to enhance government accountability as well as to promote access to justice, and it should be interpreted in such a way as to promote those objectives.
[6] It has long and consistently been held that a band council is a federal board contemplated by section 18 of the Federal Courts Act: Canatonquin v. Gabriel, [1980] 2 F.C. 792 (C.A.); Sebastian v. Saugeen First Nation No. 29, 2003 FCA 28, [2003] 3 F.C. 48 at para. 51. The Federal Court’s jurisdiction under section 18 extends not only to the band council, but also to the individual chief and councillors acting, or purporting to act, in their official capacity: Lake Babine Band v. Williams (1996), 194 N.R. 44, 61 A.C.W.S. (3d) 256 (F.C.A.); Salt River First Nation 195 (Council) v. Salt River First Nation (2003), [2004] 1 C.N.L.R. 319 (F.C.A.).
[7] In this case, based on his claim that the band council meeting at which certain resolutions were adopted was improperly called and held, the appellant sought declaratory and injunctive relief against the band councillors acting in their official capacity under the Indian Act. Prima facie, this is a matter over which the Federal Court has exclusive jurisdiction.
[8] However, it appears from the record before the Judge that what was described as a band council meeting was in fact a meeting of the board of directors of a band controlled corporation designated the Horse Lake First Nation Industrial Relations Corporation (“IRC”). IRC is incorporated under the laws of the Province of Alberta; its only issued common share is held in trust by the band council of the Horse Lake First Nation; and its directors are the chief and councillors of the First Nation. A dispute has developed concerning the use of IRC funds for the purposes of Sunrise Logging (1229128 Alberta Ltd.), a corporation owned or controlled by the appellant and his spouse. Judicial proceedings related to this dispute are currently pending in the provincial courts.
[9] Within the context of this dispute, the majority of the respondent councillors called a meeting of the board of directors of IRC to be held on December 3, 2012. The written notice of this meeting of the IRC board of directors was provided to the appellant, who in fact attended the meeting. The sole business carried out at the meeting was to remove the spouse of the appellant from her functions with IRC. However, the minutes of this meeting of the board of directors of IRC were drawn up with the title “Horse Lake First Nation Chief & Council Meeting”. Based on the limited record before the Judge, this misnomer appears to have been the result of a clerical error.
[10] The Judge found that “the actions that are the subject of these proceedings relate to meetings and decisions of the directors of the IRC”. The impugned meeting of December 3, 2012 was thus found to be a meeting of the IRC’s board of directors in the course of which the appellant was outvoted by the other directors. Since a corporation incorporated under provincial law is not a federal board, commission or other tribunal, and since there was no evidence that, at the meeting, the corporation was purporting to exercise powers conferred by or under an Act of Parliament, this alone was sufficient for the Judge to dismiss the motion for an interim injunction on the ground of lack of jurisdiction.
[11] I would consequently dismiss the appeal with costs.
“I agree
J. D. Denis Pelletier J.A.”
“I agree
Johanne Trudel J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-38-13
(APPEAL FROM AN ORDER OF THE HONOURABLE JUSTICE DE MONTIGNY OF THE FEDERAL COURT DATED JANUARY 10, 2013 FILE NO. T-2236-12)
STYLE OF CAUSE:
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: June 10, 2013
REASONS FOR JUDGMENT BY: MAINVILLE J.A.
CONCURRED IN BY: PELLETIER, TRUDEL JJ.A.
APPEARANCES:
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FOR THE APPELLANT
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FOR THE RESPONDENTS
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SOLICITORS OF RECORD:
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Edmonton, Alberta
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FOR THE APPELLANT
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Edmonton, Alberta |
FOR THE RESPONDENTS
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