Date: 20080415
Docket: T-201-08
Citation: 2008
FC 480
Ottawa, Ontario, April 15, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ALBERT
DEAN LAFOND
Applicant
and
MUSKEG LAKE CREE NATION
and GILBERT LEDOUX
Respondents
REASONS FOR ORDER AND ORDER
[1]
The
applicant, Albert Dean Lafond, brings this motion for an interlocutory
injunction against a decision dated January 8, 2008, wherein the respondent Gilbert
Ledoux purported to suspend the applicant from his position as a Headman (or
Councillor) of the Muskeg Lake Cree Nation. The applicant also wishes to be
reinstated as Headman until a final decision is rendered in this matter.
[2]
The
respondents bring a cross-motion for an adjournment of the applicant’s motion
until Monday, May 5, 2008 in Edmonton, Alberta. The applicant
strongly opposes the adjournment. However, since the respondents have been
properly served with this motion for an interlocutory injunction, there is no
basis in law to grant the adjournment except on terms protecting the applicant.
FACTS
[3]
The
applicant is a member of the Muskeg Lake Cree Nation (the respondent Band). He
was elected as a Headman of the respondent Band Council on February 13, 2006
for a term of three years.
[4]
The
respondent Band is a First Nations Band located in the Province of Saskatchewan. The Band has reserve land near the town
of Marcelin, Saskatchewan, and an urban reserve in the
city of Saskatoon. The individual respondent,
Gilbert Ledoux, is the Chief of the respondent Band and occupies a position on
Council along with the applicant.
[5]
On October
26, 2007, the applicant received a letter from Chief Ledoux outlining the
existence of “many complaints” filed against the applicant “in regard to
bullying, verbal abuse and threatening gestures toward Band members, Staff and
fellow Councillors.” The applicant was informed that the complaints were “very
serious,” and that the applicant should “consider this letter as an official
warning” regarding his conduct.
[6]
On January
8, 2008, the applicant received a second letter from Chief Ledoux alerting him to
the fact that he had been suspended from the Council effective immediately. The
letter stated, in part:
In November of 2007 [you] were advised
with an initial letter that if you continued to harass, threaten or intimidate
Band Members and Band Staff that your tenure as an elected Headman / Councilor
would be suspended.
As the elected Leader of Muskeg Lake Cree
Nation, it appears that you continue to demonstrate inappropriate behavior to
the membership and staff.
As a consequence of this decision and
your abusive use of power and your actions continue to jeopardize the good
will, community wellness and operational requirements.
[7]
In his
submissions, the applicant alleges that he has not been provided with a copy of
any of the complaints filed against him, nor was he given an opportunity to
address those complaints prior to the suspension decision being rendered.
Further, the applicant alleges that the Band’s regulations, as set out in An
Act Respecting the Government Elections and Related Regulations of the Muskeg
Lake Cree Nation (Band Regulations), were not followed in reaching the
suspension decision, nor do those Regulations contain provisions providing for
the suspension of Councillors.
[8]
In his
affidavit evidence, the respondent, Chief Ledoux, cites many examples of
abusive behaviour by the applicant and complaints about this abusive behaviour.
The Chief is a former RCMP officer and served a full career with the force
before retiring. Chief Ledoux has been elected as Chief of the respondent Band
three times.
ISSUE
[9]
The issue
is whether to adjourn the motion for an interlocutory injunction against the decision
to suspend the applicant from his position as a Band Councillor and, if so, on
what terms.
Serious issue to be tried
[10]
To decide
this issue, I must consider whether the applicant has raised a serious issue
and, if so, whether, and on what terms, the adjournment should be granted. Of
course, my analysis of the serious issue is not conclusive or binding on the
judge hearing the motion for an interlocutory injunction.
[11]
This Court
is seized with this motion and underlying application for judicial review on
account of the fact that the respondent Band Council falls within the meaning
of a “federal board, commission or other tribunal” as defined in section 2 of
the Federal Courts Act, R.S.C. 1985, c. F-7. As I held in Roseau
River Anishinabe First Nation v. Atkinson, 2003 FCT 168, 228 F.T.R. 167 at
paragraph 19:
¶ 19 In past cases the
Federal Court has assumed jurisdiction over Indian band councils, regardless of
whether the election of the band council was pursuant to band custom or the Indian
Act, see Canatonquin v. Gabriel, [1980] 2 F.C. 792 (F.C.A.) and Lameman
et al. v. Gladue et al. (1995), 90 F.T.R. 319 (T.D.). As Mr. Justice
Rothstein stated in Sparvier v. Cowessess Indian Band No. 73, [1994] 1
C.N.L.R. 182; 63 F.T.R. 242 (T.D.), at p. 4:
It
is well settled that for purposes of judicial review, an Indian band council
and persons purporting to exercise authority over members of Indian bands who
act pursuant to the provisions of the Indian Act constitute a “federal board,
commission or other tribunal” as defined in section 2 of the Federal Court
Act [...] an Indian band council came within the jurisdiction of the
Federal Court where the election of the band council was pursuant to band
custom and not the Indian Act.
[12]
In the
case at bar, the elections and procedures of the Band Council are governed by the
provisions of the Band Regulations. Accordingly, whether there exists a serious
issue depends largely on whether those Regulations were followed in reaching
the decision to indefinitely suspend or remove the applicant as an elected Councillor
in the middle of his term of office.
[13]
In
reviewing the Band Regulations at issue, the Court notes that nowhere therein do
the Regulations contain procedures or provisions allowing for the suspension of
members of the Band Council. However, the Regulations do provide for a
“Standard of Conduct for the Chief and Headmen,” which states:
The elected Chief and Headmen, as
trustees of the sacred obligations granted by the Creator and as elected
representatives of all members of the Muskeg Lake Cree Nation are expected to
uphold and abide by the laws of the Muskeg Lake Cree Nation and the “OATH OF
OFFICE” which appears as “Schedule A” to this Act.
[14]
Further,
the Band Regulations contain thorough and detailed disciplinary procedures that
are to be followed should a member of the respondent Band file a complaint
against one or more members of the Band Council. Those procedures, which have
been attached to the end of this Order as Appendix “A,” state that upon the
proper filing of a complaint, the Chief Executive Officer shall establish a
“Discipline Committee” or “Family Representative Committee” in accordance with
the provisions in the Regulations. That Committee shall then appoint a
Discipline Tribunal, which is tasked with holding a hearing into the complaint,
during which time the subject of the complaint must be provided with written
notice of the complaint and be given an opportunity to present evidence and
argument in support of their position. Explicit in the Regulations is that the
individual or individuals against whom the complaint is brought shall be
afforded a reasonable opportunity to know and respond to the allegations made
against them.
[15]
Upon
completion of the “Discipline Hearing,” if the complaint has been proven on the
balance of probabilities, the Tribunal must determine whether the subject of
the complaint should be: 1) dismissed from office and a by-election called to
fill the vacancy; or 2) allowed to continue in office with or without
conditions attached to that decision. Further, it must be reiterated that the
Band Regulations do not stipulate that a Chief or Councillor subject to a
complaint shall be suspended from office during the investigation and hearing
period.
[16]
In the
case at bar, the applicant was suspended from his position by what appears to
be a unilateral declaration made by the respondent, Chief Ledoux. Nowhere in the
applicant’s submissions is there any mention of a Council resolution in support
of the Chief’s decision. Further, in the suspension letter, Chief Ledoux states
that the applicant may “appeal this decision by following the governing Acts.” However,
a plain reading of the Band Regulations does not place the onus on the
applicant to initiate the disciplinary process; rather, that process must be
initiated by the Chief Executive Officer, and the applicant, who is the subject
of the alleged complaints, must be provided with the allegations against him,
as well as be given an opportunity to respond to those allegations.
[17]
Chief
Ledoux’s Affidavit, sworn March 27, 2008, deposes that the applicant attended a
meeting of elders in late January 2008 “to try to give his side of the story.”
The elders decided to do nothing after the meeting. Whether this meeting
provides the applicant with an opportunity to know, and respond to, the
allegations leading to his suspension is a serious issue. Moreover, the
question of whether the Chief has the inherent power to suspend a councillor
without regard to the Band Regulations is another serious issue.
[18]
Accordingly,
without conducting a prolonged examination into the merits of the case, I am
satisfied, on the basis of the evidence before me, that the applicant has
demonstrated a prima facie case and the existence of a serious issue.
Whether to grant the
adjournment and, if so, on what terms
[19]
Since the
applicant’s motion for an interlocutory injunction was made in proper form and
in a timely manner under the Federal Courts Rules, S.O.R./98-106, the Court is
obliged to consider it.
[20]
The respondents’
request for an adjournment, which is understandably opposed by the applicant,
cannot be reasonably granted by the Court except on the following terms. The
Court refers the parties to my Reasons for Order and Order in Prince v. Sucker
Creek First Nation #150A, 2008 FC 479, which discusses the elements
of irreparable harm and the balance of convenience, elements that pertain on a prima
facie basis to the material before the Court today in the case at bar.
Reasonable terms
[21]
The
reasonable terms for the Order granting the adjournment are that an interim
injunction is granted preventing the respondents from suspending the applicant
until the motion for the interlocutory injunction is heard, and an interim Order
is granted wherein that the applicant is immediately reinstated as a Councillor
with pay from the date of this Order until the motion for the interlocutory
injunction is heard.
ORDER
THIS COURT ORDERS that:
1.
This
motion for an interlocutory injunction is adjourned until May 5, 2008 in Edmonton;
2.
An interim
injunction is granted preventing the respondents from suspending the applicant
until the motion is heard;
3.
An interim
order is granted that the respondents immediately reinstate the applicant as a
councillor with pay from the date of this Order until the motion is heard; and
4.
Costs of
this motion to the applicant in the cause.
“Michael
A. Kelen”
Appendix “A”
An Act Respecting the Government
Elections and Related Regulations
of the Muskeg Lake Cree Nation
STANDARD
OF CONDUCT FOR THE CHIEF AND HEADMEN
3.
The
elected Chief and Headmen, as trustees of the sacred obligations granted by the
Creator and as elected representatives of all members of the Muskeg Lake Cree
Nation are expected to uphold and abide by the laws of the Muskeg Lake Cree
Nation and the “OATH OF OFFICE” which appears as “Schedule A” to this Act.
REMOVAL
FROM OFFICE
4.
Once duly
elected by members of the Muskeg Lake Cree Nation, the Chief and Headmen are
politically and financially accountable to all members of the Muskeg Lake Cree
Nation and as such they may be removed from office if they:
i.
Consistently
ignore or abuse the “OATH OF OFFICE”;
ii.
Are absent
from three (3) consecutive Muskeg Lake Cree nation assemblies or duly convened
council meetings without justified cause;
iii.
Are
convicted under the Criminal Code of Canada for an indictable offence or a dual
offence on which the Crown has elected to proceed by way of indictment, unless
such a conviction relates to the exercise of an aboriginal or treaty right
which is a matter of legal dispute.
DISCIPLINE
PROCEDURES
5.
Any member
of the Muskeg Lake Cree Nation, 18 years of age or older, either individually
or as part of a group, may submit a complaint in writing concerning an alleged
violation of section 13 by one or more members of Council. The complaint(s)
shall specifically allege the grounds of the complainant(s), in order to
identify the circumstances relating thereto. The complaint shall be accompanied
by a petition signed by Thirty-five (35) electors of the Muskeg Lake Cree
Nation;
6.
The
written complaint shall be submitted to the Chief Executive Officer of the
Muskeg Lake Cree Nation who shall thereupon forthwith establish a “Discipline
Committee” in the same manner as an Appeal committee is established under this
Act, or, if established, the Family Representatives Committee, and notify this
body of the complaint;
7.
Upon
receiving notice of the complaint, the Discipline Committee or Family
Representatives Committee shall appoint a three person Discipline Tribunal. No
members of the Council shall be appointed to the Discipline Tribunal who is a
lineal relation or a sibling of any of the candidates or Council members who are
the subject of the complaint;
8.
Upon their
appointment, the Discipline Tribunal shall hold a discipline hearing into the
complaint in which the complainants and all Council members who are the subject
of the complaint are provided written notice of and given an opportunity to
present evidence and argument in support of their complaint or defence thereto
as the case may be. The individual(s), against whom the complaint is brought,
shall be afforded a reasonable opportunity to know and respond to the allegations
made against him or them as the case may be;
9.
Subject to
the foregoing, the Discipline Tribunal for a given hearing may establish its
own rules of evidence and procedure. Nothing herein shall require evidence
adduced or procedure adopted to conform to rules of evidence or procedure,
which may be adopted in any other appeal, or by any other Discipline Tribunal,
tribunal or court whatsoever. The Discipline tribunal, shall at their
discretion, have access to technical, translation and administrative assistance
and advisory services. The actual and reasonable costs for such services shall
be borne by the Muskeg Lake Cree Nation
10.
Upon
conclusion of the Discipline Hearing for the purpose of receiving evidence and
argument the Discipline Tribunal shall endeavor to reach a decision on the
complaint within five (5) working days of the conclusion of the hearing and in
its decision shall:
Determine whether the complaint has been
proven on a balance of probabilities;
1.
where the
complaint is found to be proven, decide whether the subject of the complaint
should be:
i.
Dismissed
from office and a by-election called to fill the vacancy; or
ii.
Allowed to
continue in office with or without conditions attached to that decision
2.
Where the
complaint is found not to be proven, dismiss the complaint.
[…]
REMOVAL
FROM OFFICE
12.
Except as
provided for in this Act, no Chief or Headman may be removed from office before
the expiration of his or her term.
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