Date: 20000414
Docket: T-850-99
BETWEEN:
PHYLLIS RANDALL, LONNIE DODGE, JOSIE DODGE,
ROBERT K. SCOTT, BRIAN WELCH, FLOYD SCOTT,
ANTHONY DODGE (A.K.A. ARTHUR DANIEL SIMONS),
MABEL HAWCO, CHRISTOPHER HAWCO SR.,
SUSAN DE LEARY, WILLIAM DELEARY, LISA BRUMMIT,
LAURA BRUMMIT MERCER, WALLACE KENNEY,
RENA H. THOMPSON, PAMELA DODGE, TERESA JACOBS,
ELLA ROBITAILLE, CAROLINE JUNE WELCH, TONY DONOVAN,
JO ANN WILSON, ROBERT DODGE, JOSEPH CHAMBERLIN,
MARGARET VANDERWEIDE, MARIE DUCKWORTH,
SHAWN DUCKWORTH, IAN DUCKWORTH, DAVID MCPHEE,
JANICE DODGE, DANIEL CHAMBERLIN, NANCY LAMOREUX,
JAMES ALLAN DODGE, SANDRA DODGE, WENDY DONOVAN
CAMPBELL, DARRYL R. JACOBS, EDWARD A. JACOBS,
ANGELA HIGGINS, WILLIAM DODGE, FLORENCE DODGE,
STANLEY JAMES SCOTT, STEVEN SCOTT, DANIEL SCOTT,
JACK SCOTT, MARY FRANCES DUCKWORTH,
CANDICE BRUMMITT, VICKY BAKELAAR-CORNELL,
MICHAEL CORNELL, WILLIAM DUNN, SARA ANN SCOTT,
PAT BRUMMITT, WILSON DODGE, SR., ELIZABETH
DODGE, WILSON DODGE, JR., WILSON DODGE, III,
MYRTLE JOYCE, EVA TYLER, RONALD DOOLITTLE
Plaintiffs
- and -
CALDWELL FIRST NATION OF POINT PELEE AND PELEE ISLAND
BAND COUNCIL, LARRY JOHNSON, HENRY SOLOMON,
FRANKLIN SOLOMON and DONALD SOLOMON
Defendants
Docket: T-1230-99
LOUISE HILLIER, JANNE PETERS, MELODY WATSON,
JIM PETERS, SUSIE PETERS, VIDA PETERS, ERIC PETERS,
JUNE PETERS, CARRIE PETERS, JODY PETERS,
LINDSAY PETERS, RALPH PETERS, GERALDINE PETERS,
YVONNE PETERS, DAVID HILLIER, DENNIS HILLIER,
KEN FORD, MARGARET PETERS-NELNOR, ISSAC PETERS,
DIANE PETERS, DANIELLE PETERS, ISSAC PETERS, JR.,
MILDRED FORD, JANET ALLEN, ELIZABETH WENZLER,
RUTH SIMPSON and STEVE SIMPSON
Plaintiffs
- and -
CALDWELL FIRST NATION OF POINT PELEE AND PELEE ISLAND
BAND COUNCIL, LARRY JOHNSON, HENRY SOLOMON,
FRANKLIN SOLOMON and DONALD SOLOMON
Defendants
REASONS FOR ORDER
DAWSON, J.:
[1] These are my reasons for an order pronounced on April 6, 2000.
[2] On April 8, 2000, Band members of the Caldwell First Nation of Point Pelee and Pelee Island ("the Caldwells") are scheduled to vote on whether to ratify the terms of a proposed land claim settlement negotiated with the federal government ("the government"). The government has agreed to pay $23,400,000 in settlement of the Caldwells' claims relating to the removal of the Caldwells from their lands without a proper surrender. The proposed settlement has been characterized as the single most important event in the history of the Caldwells.
[3] The plaintiffs in both actions are status indians and members of the Caldwell First Nation of Point Pelee and Pelee Island Band. They move for an interim and interlocutory injunction restraining, until after the trial of these matters, the defendant Band Councillors and Chief from conducting the ratification vote. There are almost 80 individual plaintiffs in both actions.
[4] In seeking to restrain the ratification vote, the plaintiffs allege that the Chief, the defendant Larry Johnson, was not validly elected, and that the Chief and members of Council, the other individual defendants, have refused to conduct regular elections for the positions of Chief and Council in accord with the Band's customs and traditions, notwithstanding repeated demands that such elections take place. Of more direct relevance to the motion for injunctive relief, is that it is also alleged that the Chief and Council have breached their positions and duties by altering and manipulating the Membership Code of the Band. It is alleged that the Membership Code was never legally ratified by the Band, that the Chief and members of Council have improperly added to, and deleted from, the Band's membership list names of individual Band members and wrongfully manipulated the Band's voters list so as to ensure an outcome on the ratification vote acceptable to the Chief and Council.
[5] With respect to the negotiation of the proposed settlement, it is alleged that the Chief and Council failed during the negotiation to provide proper disclosure to members of the Band, that they entered into a tentative agreement involving terms which they knew or ought to have known were contrary to the stated wishes of the majority of the Band and thereafter improperly acquired interests in lands for the purpose of creating a reserve in the Chatham-Kent area (away from the ancestral home of the Caldwells) to the permanent and irreparable harm of the plaintiffs' rights.
[6] It is common ground that in considering the motion for injunctive relief, the Court must apply the three stage test articulated by the Supreme Court of Canada in Manitoba (A.G.) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 and RJR - MacDonald Inc. v. Canada (A.G.), [1995] 3 S.C.R. 199.
[7] This requires the plaintiffs to demonstrate that:
| (i) they raise a serious question to be tried; |
| (ii) they will suffer irreparable harm if injunctive relief is refused; and |
| (iii) the balance of convenience favors granting the injunction. |
[8] I will consider each factor in turn.
1. Serious Question to be Tried
[9] In considering the existence of a serious question to be tried, the Court must be satisfied that the claim is neither frivolous nor vexatious. At this stage, it is not part of the Court's function to resolve conflicts of evidence.
[10] In opposing the granting of injunctive relief, the defendants deny any impropriety with respect to their election, state that the Council and Chief have conducted their duties in a fair and diligent manner and that their actions have been in accord with the will of the majority of the Caldwells. They assert that the plaintiffs present no evidence that elections and meetings were not conducted fairly or that the Membership Code and voters lists have been improperly constituted. They correctly note that the Membership Code had not been challenged in legal proceedings for 13 years.
[11] In support of the allegation that the Chief was not validly elected, the plaintiff Louise Hillier swore that she attended the general meeting of the Band held on November 19, 1989, and that at that time she was nominated for the position of Chief. She swears that Larry Johnson wrongfully refused to accept her valid nomination (apparently on the ground that her name had not appeared on the voters lists for ten years, as required by the Membership Code, in that it previously appeared under her maiden name).
[12] Larry Johnson, the Band Chief, does not in his affidavit deny that Louise Hillier's nomination was not accepted for the purpose of the election in November of 1989.
[13] The fact that her nomination was not accepted appears curious in that at the Band's general meeting held on February 20, 1988, she was elected by the Band membership to its Membership Court, and she is shown in the minutes of the Band Council meeting of March 5, 1973, as receiving, under her married name, expenses for attending the meeting.
[14] Other plaintiffs also swore that Larry Johnson refused to accept the nomination of Louise Hillier as Chief.
[15] The November 1989 election was the last election held for the position of Chief.
[16] Thus, some evidence was adduced by the plaintiffs putting in question the validity of the election of Larry Johnson as Chief in view of his failure to accept the nomination of Louise Hillier. It must, however, be noted that no explanation was given by the plaintiffs for the delay in challenging his election.
[17] As to the allegation that the Chief and Council refused to conduct regular elections, dispute exists as to the obligation to call elections. It is the evidence of Larry Johnson that, according to Band custom, an election is only held when members of the Band indicate that they wish an election to be held. He swears that when requests for an election have been made, a vote has been taken as to whether or not to have a full election and the majority of voters have voted against having an election.
[18] Contrary to this, various plaintiffs provided affidavits in which they swore that it is the custom of the Caldwells to hold elections every three years and there have been ongoing calls for an election which Larry Johnson has ignored. The plaintiff Lonnie Dodge swore that faced with calls for an election Larry Johnson "always said we were too busy or [he would] convert it to another show of hands for support of the Council". Mr. Dodge swore that in consequence he and "most of the applicants and dozens of other members, ... walked away in frustration for years".
[19] The plaintiff Caroline June Welch swore of Larry Johnson that "[I]n the 1990's he told us at a general council meeting that he was not going to allow another vote for chief until he said so".
[20] Of more relevance to the motion to restrain a democratic vote, are the allegations that the Membership Code and voters lists are invalid and the membership and voters lists have been improperly manipulated by the defendants by improperly adding and deleting names of individual Band members.
[21] It is the evidence of Larry Johnson that at the June 20, 1987 general meeting the Band members voted in favour of establishing their own Membership Code and that a Code was properly finalized. Thereafter, he says that applications for membership were considered by the Council and "admission to the Band was granted in accordance with the Membership Code". He swears that "it has become our Band custom to review and adopt a list of voters at the commencement of each general meeting".
[22] Contrary to this, the plaintiff Louise Hillier swears that she does not believe that a valid Membership Code has even been passed. She swears that discussions of a Membership Code began at the general meeting held on June 20, 1987, but that no notice was given of any intended decision at the meeting regarding a Membership Code. She swears that they were told at the meeting that they were drafting a Membership Code which would ultimately lead to a registered Membership Code. She swears that members of the Band were informed that they would receive a copy of the draft Code once it had been processed at which time comments could be made and any concerns would be discussed. She says that Band members were told that a further draft of the proposed Code would be prepared in advance of the next general meeting and that at no time were members of the Band advised that the defendants intended to submit the draft document to the government and represent it as a valid Membership Code. She disputes the accuracy of the minutes of the June 20, 1987 meeting.
[23] The plaintiff Phyllis Randall swore that no copy of the Membership Code was received until November 18, 1989, and that the version of the Membership Code provided then did not accord with the provisions discussed in 1987.
[24] The plaintiff Mabel Hawco swore that members of the Band were not given the opportunity to vote on the Membership Code when it was provided in November of 1989, and the form of the Membership Code then provided did not accord with provisions discussed in 1987.
[25] Lonnie Dodge swears that during 1987 and 1988 the Membership Code may have been voted on in some form, but never with proper notice or in a full and complete form. He swears that the final contents of the Code were not disclosed until November of 1989 and that even then it was not properly voted on as a whole and that members of the Band discussed only parts of it. He too swears that the form of the Membership Code provided in 1989 did not accord with the provisions discussed in 1987. He swears that "Larry Johnson may have asked for a show of hands but there was never a proper vote on the membership code by the membership and it simply was adopted by unilateral decision of Larry Johnson and his council".
[26] The plaintiffs in asserting that the Membership Code is not valid also point to a letter dated September 28, 1987, sent to Chief Johnson by the then Minister of Indian Affairs and Northern Development. In such letter, the Minister advises that he is giving notice pursuant to the Indian Act that the Caldwell Band has control of its membership, effective June 25, 1987. The Minister notes, however, that he is concerned that clause 29 of the Membership Code restricting elected offices in the Band to persons who have been members for a minimum of ten years may be contrary to the Canadian Charter of Rights and Freedoms. The Minister states that:
| "It is important for you to appreciate that should the band's membership rules be successfully challenged by anyone in court with the result that the membership rules are struck down in whole or in part, then the membership provisions of the Indian Act could become operative. Also, if such rulings were made by a court, it could call into question band decisions which were based on the rules which had been struck down." |
[27] The plaintiffs allege that this correspondence was never brought to the attention of Band members.
[28] The plaintiffs also adduce evidence as to ongoing problems with the membership list and state that to the extent that the membership list is invalid, the voters list, which is based upon it, is similarly invalid.
[29] Louise Hillier swears that since 1987 Larry Johnson and/or the Band Council have wrongfully seized control of Band membership, that they made all decisions regarding membership since that time, and that they have failed or refused to provide Band members with information regarding membership despite repeated demands to do so.
[30] She swears that notwithstanding her election she was removed from the Membership Court Committee as the result of a decision unilaterally imposed by Larry Johnson. She swears that the Chief and Council have usurped the function of the Membership Court by unilaterally deciding who will or will not be granted membership to the Band.
[31] The minutes of the June of 1989 general meeting of the Band state that Chief Johnson reported that the Membership Review Board and Court need to meet on a regular basis and take part in training, but the plaintiff Phyllis Randall swears that to her knowledge the Court is no longer functioning.
[32] The plaintiff Jo Ann Wilson swore an affidavit in support of the motion. She states that she worked in the Caldwell First Nation Band office for seven years from 1991 to 1997, that she was the assistant-administrator for three years and the health coordinator for the latter part of her service at the Band office. She swears that the membership would accept members into the Band by motion and hand vote and they would be removed by the Council or the membership committee in secret without a general meeting. She swears that general meetings were never informed when a member was removed from membership or voting by Larry Johnson.
[33] Jo Ann Wilson also swears that the minutes of the November 1994 meeting reflect Larry Johnson explaining that the Band always "exercised flexibility in preparing the [voters] list and [that] the membership have final approval". However, she swears that "the reality is that the membership has no final say and issues involving voting lists and especially removal are kept from the membership or the membership is misinformed". She swears that Larry Johnson took people off the voters list "at whim" and that "if he did not get a transfer form from valid band members or a waiver, he would just remove them from the voters' list. The problem was that he did not give waiver forms to those who wanted them and he never gave any proof to full members that they needed to sign them. This is one of the games Larry Johnson would use to 3adjust3 the lists to his advantage".
[34] Jo Ann Wilson swore that the word "troublemakers" was one of Larry Johnson's favourite expressions. He would simply take "troublemakers" off the membership list and when asked, he would answer that the person had asked to transfer.
[35] Ron Doolittle, another plaintiff, swears that he should be a voting member of the Caldwell First Nation but Larry Johnson has refused to take any steps to regularize his status.
[36] Mabel Hawco swears that she and her sons Christopher Hawco and David McPhee should be on the band list but that they have been improperly refused. She swears that she has 23 close family members, including several children, who have been recognized as Band members.
[37] Caroline June Welch is another plaintiff who identifies herself as an Elder. She swears that Larry Johnson has manipulated the membership list such that it is impossible for anyone to "figure out without a comprehensive review of everything what has occurred since 1987". She says a major impropriety is that Larry Johnson identifies prospective members' grandparents as different people then they are in fact. She says that Indian Affairs does not check into this and "the result is another generation of children of his supporters is enfranchised that should not be while he keeps out the grandchildren of members who would certainly be opposed to him. Some of my grandchildren should not be enfranchised as members of the Caldwell Band but Larry Johnson in the applications to the government identified my father and mother (who was white) as not their grandparents but instead identified my Uncle and Aunt (both natives) as their grandparents so that my grandchildren will be enfranchised if they support Larry Johnson".
[38] On consent, Justice Campbell made an order on June 2, 1999, which obliged the defendants to produce by June 21, 1999, the most correct Band list maintained by the Band. Phyllis Randall swears that the list was not produced by the defendants until June 30, 1999 and that it is "so faulty as to be laughable". She stated that the defendants Larry Johnson, Henry Solomon, Franklin Solomon and Donald Solomon were not on the list, therefore not members and not eligible to hold office. She also swore that with respect to that list, 22 of the plaintiffs in the action in which she is also a plaintiff were left off the list provided, and that 18 of them had been on the voters list of members in 1997.
[39] All of this evidence is much disputed by the defendants who say that at all times they acted properly. They point as well to the evidence of two witnesses who do not claim to be members of the Caldwell Band, Delbert L. Riley and Ray Martin.
[40] Mr. Riley is a past chief of the Union of Ontario Indians and past national leader of the Indian Brotherhood/Assembly of First Nations. He swears he was at the June 20, 1987 general meeting and that the members present "accepted a draft membership code" and that Chief Johnson ran the meeting in a professional and even-handed manner.
[41] Mr. Martin in 1987 was a District Manager of Indian Affairs with responsibility for the Caldwell First Nation. His affidavit was, with respect to the 1987 meeting, almost word for word, to the same effect as Mr. Riley's.
[42] Larry Johnson attached to his most recent affidavit a copy of the current voters list. There are 178 names on that list, including the names of a number of the plaintiffs. The number of plaintiffs, almost 80, is a significant number when compared to the size of the list of voters.
[43] With respect to the allegations that the Chief and members of Council failed to provide proper disclosure as to the status of the negotiations and entered into a tentative agreement involving terms which they knew or ought to have known were contrary to the stated wishes of a majority of the Band, the plaintiffs note that: (a) the minutes reflect that at the general meeting of the Band held on June 10, 1989, a motion was carried that provided, among other things, that the Council would make regular written reports to the membership on meetings and negotiations on land rights; and (b) on December 3, 1973, a Band Council Resolution was passed, and never subsequently revoked, which provided that "Pelee Island or a Reserve equal in area be secured for the Band and that this Reserve be in close proximity to Point Pelee".
[44] The settlement which has been negotiated is a monetary settlement, coupled with the creation of a land acquisition trust fund. The Chief and members of Council have entered into agreements to provide the Band, directly or indirectly, with an interest in lands in the Chatham-Kent area. This land is said not to be in close proximity to Point Pelee.
[45] As to the propriety of the actions of the defendants with respect to the negotiation and reports to the Band, the following are excerpts from the oral examination of Franklin Solomon, one of the defendants, and a member of the Band Council:
| Page 13 |
| 85 . Q. And what was the monetary figure put on the table in the afternoon meeting in October of 396? |
| A. It was 23 million. I don't think the plus four or .4 in there was in there yet because there were some extra additions. Like I know when they first come out with it, they'd done some ...they had some wrong figuring that they'd done. |
| 86. Q. I see. Okay. And again, I just want to make sure that I'm clear. This is in the fall of 396. That's approximately two years before you reached the tentative agreement. |
| A. '96, yes. |
| 87. Q. So within ... we're talking about big dollars here, but within $400,000 the offer made by the federal government in October of '96 was within $400,000 of the agreement that you ultimately reached. |
| A. Yes. |
| 88. Q. Tentative. |
| A. Tentative, yes. |
| ... |
| Page 16 |
| 108. Q. Am I correct, though, that at no time in 1996 did the council and/or the negotiating committee come to the membership as a whole and say, "There's an offer on the table for 23 million"? |
| A. Yes. We didn't have, we did not have any big general meeting or anything planned where we had a big get-together to do that. |
| ... |
| Page 22 |
| 142. Q. That occupies 90 percent of the contents of the minutes of that meeting. So if I correctly understand this, the negotiating committee, which is the Chief, the councillors and the lawyer for the band, are present in front of a large group of the membership of the band debating the issue of the size of land for a reserve while in the back of their minds they know full well that the negotiations with the federal government are proceeding on the basis of dollars. |
| A. I suppose so. |
| ... |
| Page 32 |
| 196. Q. If we could just look at item number 2, "Call to order welcome.". There are five paragraphs and I'm just looking at paragraph number three. It says, "On the 1790 treaty we have a mandate to get all information on negotiations for membership." Can you read that? |
| A. Yes. |
| 197. Q. Do you agree with me, sir, that that was a statement made by that chief, Larry Johnson, confirming the obligation of the committee to provide, quote, "all information on negotiations" to the membership? |
| A. Yes. |
| 198. Q. And do you agree with me, sir, that you were in violation of that mandate at that point in time? |
| A. At that point in time, yes, I guess, yes. |
| ... |
| Page 33 |
| 200. Q. This meeting provided you with yet a further opportunity to properly inform the membership as a whole and I'm assuming that a decision was made not to do so. |
| A. I guess. |
| ... |
| Page 34 |
| 204. Q. The next sentence reads, "Paul Williams said when the government negotiator comes back with a mandate, we'll have to decide if we'll accept what Canada offers." |
| A. Yes. |
| 205. Q. Would you agree with me, sir, that the content of that statement suggests that you were still waiting for an offer from Canada? |
| A. Well, that's what that sentence sounds like. |
| 206. Q. And would you agree with me, sir, that that is not entirely accurate? |
| A. Well, the way it's put down, I guess, yes. |
| 207. Q. And would you agree with me that Paul Williams was speaking at that time in his capacity as legal counsel to the band but also as a member of the negotiating committee. Is that correct? |
| A. Yes. |
| 208. Q. And that when he made those statements he was speaking not only for himself but for you as well? |
| A. Yes. |
| ... |
| Page 45 |
| 281. Q. I understand what you're telling me. You would have begun seriously trying to identify land parcels after October of 1996, because that's when the government put the $20 million offer on the table. |
| ... |
| Page 46 |
| 284. Q. And the second part was to begin the task of identifying parcels of land that could be purchased so that you could start to get a handle on where land would be acquired and what the cost of it would be. You're nodding your head. |
| A. Yes, yes. |
| 286. Q. So it was part of a specific plan to pursue both the monetary amount and the location of properties at the same time without disclosing that to the band as a whole? |
| A. Yes. |
| ... |
| Page 50 |
| 315. Q. Well, what I was thinking of was maybe that you as a committee decided that you wouldn't bring forward any of this information until you had a complete package to put before the membership, that you didn't want to allow information out into the membership as a whole until things were pretty well wrapped up. Is that a fair statement? |
| A. That's a fair statement. |
| ... |
| Page 51 |
| 316. Q. And is that because you had concerns about what might happen if pieces of information were disclosed to the membership? |
| A. Well, yes, yes. |
| 317. Q. And is that at least in part because you knew that there were certain individual members of the band who were voices of dissent and discontent and that they may cause problems for the negotiating committee if they had that information in advance of the settlement? |
| A. Yes. |
| ... |
| Page 52 |
| 323. Q. And the way the press got hold of it is that the council and the negotiating committee did share this confidential information with some members of the band but not with everyone. |
| A. Not with everyone. |
| 324. Q. And the idea was that council felt that they could trust certain people to keep the information confidential. |
| A. Hopefully. |
| 325. Q. And so council made a decision on a person-by-person basis as to whether they would tell them or not, thinking that they could trust certain people. |
| A. Yes, yes. |
| 326. Q. And that means, as well, that they made decisions about some people that they wouldn't tell because they were sure, or at least suspected that the information would be used to the disadvantage of council. |
| A. Yes. |
| ... |
| Page 54 |
| 341. Q. And you knew that, or at least you suspected, I believe, that there were a large number of people who were either related to Louise [Hillier] or shared her views because they lived in the same geographic area. |
| A. That's right. |
| 342. Q. And you could see that their desire to have lands on a reserve in that immediate geographic area was inconsistent with the steps being taken by council and the negotiating committee in 1997 and 1998. Correct? |
| A. Yes, yes. |
| 343. Q. And you knew that if you actually disclosed that information to them before the lands had been assembled, they would make it much harder to acquire the lands in the Chatham-Kent area. Do you agree? |
| A. Yes, that would have happened. |
| 344. Q. So it's very important for members of council and the negotiating committee to make sure that they had lined up these tracts of land and acquired interest in those lands before the fact of the monetary settlement was disclosed at all to Louise Hillier and those sympathetic to her position. |
| A. Yes, I suppose so. |
| ... |
| Page 78 |
| 497. Q. So it wasn't like they got sent a letter saying, "You're not welcome." It's just that they weren't told. |
| A. Yes. |
| 499. Q. And that ultimately, word of some of these workshops got out and demands were made by, for example, my clients that a more formal set of information meetings be held. |
| A. Yes. |
| ... |
| Page 79 |
| 502. Q. And by then you had already reached an agreement in principle ... |
| A. In principle. |
| 503. Q. ... for a land settlement and a trust agreement? |
| A. Yes. |
| 504. Q. And you had already completed the acquisition of properties, land, in the Chatham-Kent area? |
| A. Yes. |
| 505. Q. So that by the time there was public disclosure, specifically as it relates to the land, what was done was done and could not be undone. |
| A. Yes. |
[46] As noted above, on a motion for an interlocutory injunction, the Court is not to attempt to resolve conflicts of evidence.
[47] In the present case, I am satisfied that the plaintiffs raise issues which are neither vexatious nor frivolous. Serious issues are raised in regard to the propriety of the defendants" actions in negotiating the settlement, and in regard to the Membership Code, membership list and voters list.
[48] While I have considered the evidence of the defendants that the Band has on a number of occasions approved the voters list, the transcript provided by the plaintiffs made from the video tape of the Caldwell First Nation meeting of January 17, 1999, raises issues regarding that voting process.
[49] Once satisfied that the application is neither vexatious nor frivolous, it is necessary to proceed to consider the second and third tests.
2. Irreparable Harm
[50] The second step to consider in determining whether or not to grant an interlocutory injunction is to determine whether the parties seeking the injunction would, unless the injunction is granted, suffer irreparable harm. Irreparable harm refers to the nature of the harm to be suffered. The harm must be of a material nature which cannot be adequately remedied by damages.
[51] In the present case, the plaintiffs allege irreparable harm in that if ratified a binding decision will be made with respect to the proposed settlement by an improperly constituted electorate. The plaintiffs further point to the fact that the settlement agreement contains a term whereby the Caldwells agree to forever release and discharge Canada from any and all claims with respect to any interest in the lands described in the 1790 Treaty. This would include at least a part, if not all, of the Caldwells" ancestral home land.
[52] In oral argument, counsel for the defendants conceded that it was "arguably correct" that any claim to the ancestral home land would be given up in the settlement but posed the question as to how that could be harmful if that decision was made by a majority of the Caldwells. The latter qualification goes to the core of the issues raised in these proceedings.
[53] I am satisfied that the loss of any rights to future claims with respect to the Caldwells' ancestral home land and the release which the settlement would provide to Canada if the proposed settlement is ratified constitutes irreparable harm on the basis the no amount of damages could restore the plaintiffs to their position prior to the settlement.
3. The Balance of Convenience
[54] The third step to be taken when considering an application for an interlocutory injunction involves determining which of the two parties will suffer the greater harm from the granting or refusal of the interlocutory injunction pending a decision on the merits.
[55] The defendants argue that delaying the ratification process will cause the Caldwells to lose interest on the settlement payments, and will delay the creation of a land base for the Caldwell Nation with resultant harm in the form of lost benefits. Larry Johnson swears that the government has not indicated the effect an injunction will have on its willingness to pursue this settlement with the Caldwells. He fears that if the injunction is granted the claims of the Caldwells will be given a very low or non-existent priority.
[56] The plaintiffs respond that delay has been held not to constitute irreparable harm and that lost benefits or lost interests can be compensated for. They argue that the Court cannot speculate on the effect of an injunction on the government's position and that the evidence of government policy put before the Court is to the opposite effect of that suggested by Mr. Johnson.
[57] The defendants respond that the plaintiffs in the Randall action have not indicated their willingness to provide an undertaking as to damages and that, in any event, none of the plaintiffs have undertaken to compensate Band families who, if an injunction is granted, would be delayed in their enjoyment of all of the benefits of residence on a First Nation which would come with ratification of the proposed settlement.
[58] The plaintiffs in the Hillier action, who are prepared to give an undertaking as to damages, argue and cite authority to the effect that such undertaking is only for the benefit of parties to the litigation. It follows, they say, that any families adversely affected by the injunction would not be entitled to the benefit of any undertaking as to damages.
[59] The balance of convenience is the most troubling aspect of this application. In response to questions put by the Court, plaintiffs' counsel advised that this matter might be ready for trial within one year, if a concerted effort is made to ready the matter for trial. Counsel for the defendants stated that given the fact that the pleadings have not yet closed, it will likely take two to three years to complete the discovery process so that this matter is probably three years away from trial.
[60] I believe that the estimate of counsel for the plaintiffs is overly optimistic, and indeed it is more likely that this matter is two to three years away from trial.
[61] I cannot on the evidence before me at this time conclude that if there is to be a delay in the order of two to three years the balance of convenience favours granting an injunction for that length of time.
[62] What is fundamentally at issue with respect to the ratification vote is whether or not a fair and democratic vote can be taken. There is much to be said for the defendants' submission that the plaintiffs should be required to show, by evidence, individual by individual, that the voting list is so flawed that a fair and democratic vote will not result.
[63] To this, the plaintiffs respond that until the commencement of this litigation, the defendants refused to provide complete disclosure regarding eligibility for membership in the Band and information relating to the entitlement of each individual to membership in the Band. Consequently, they argue that to date it has not yet been possible for the plaintiffs to properly "vet" the membership list, which in turn is used to create the voters list.
[64] The plaintiffs further submit that the defendants have, by order of the Prothonotary, been ordered to use their best effort to produce all documentation undertaken to be provided during the examination for discovery of Larry Johnson on or before April 28, 2000. A similar order was made with respect to documentation undertaken to be provided during the examination for discovery of Franklin Solomon. The plaintiffs say this information is necessary to enable them to "vet" the membership list. They point to the fact that it was on February 4, 2000, after the Prothonotary's order on disclosure was pronounced, that the defendants passed a Band Council Resolution calling for the ratification vote to be held on April 8, 2000, a date prior to the date on which the defendants were required to produce documentation.
[65] Counsel for the defendants could not provide any explanation as why it was necessary for the vote to be so scheduled.
[66] Based on the evidence before me, it appears to me that the interests of the plaintiffs will be sufficiently protected, and neither the defendants nor other members of the Caldwell First Nation of Point Pelee and Pelee Island will be unduly harmed, if an interim injunction is granted restraining and enjoining holding of the ratification vote until after June 30, 2000. This is where I believe the balance of convenience currently lies.
[67] During that time, the defendants will be required to comply with the order of the Prothonotary pronounced on January 19, 2000, and the plaintiffs will have the opportunity to satisfy themselves as to the propriety of the voters list. Hopefully, the plaintiffs will make whatever submissions they think necessary or appropriate to the defendants with respect to any amendment of the voters list in an effort to see that a ratification vote may be held by a proper electorate.
[68] I am equally hopeful that the defendants would properly consider any such submissions.
[69] In the event such hope is misplaced, any party will be at liberty to apply, at any time, to have the interim injunction dissolved or extended. However, if seeking an extension the plaintiffs should be mindful of the onus to show a serious issue with respect to the voters list once proper disclosure has been made to them by the defendants.
[70] I have given careful consideration as to the requirement for an undertaking as to damages. The issue is complicated by the fact that one group of plaintiffs is prepared to give an undertaking while the other is not. Counsel for the defendants doubted the financial ability of the plaintiffs in any event to provide a meaningful undertaking.
[71] This Court has jurisdiction, in an exceptional case, not to require an undertaking to be given. I am concerned that if the plaintiffs in the Randall action were required to give the undertaking as a term of the injunction, this would put an effective end to their action and their right to have what may be a legitimate claim adjudicated upon. I can, however, see no justification for placing the entire burden of the undertaking upon the plaintiffs in the Hillier action, whose undertaking is offered if the Court considers it necessary.
[72] In the result, given the relatively short duration of the injunction and the circumstances giving rise to the motion, I will exercise my discretion to not require the undertaking to be given.
[73] Any party is of course at liberty to apply at any time to the Court for such directions or further orders as they may consider necessary or helpful.
[74] The costs of this motion shall be in the cause.
OTTAWA, Ontario
April 14, 2000
"Eleanor R. Dawson"
Judge