Date: 20000731
Docket: T-1243-00
BETWEEN:
CHIEF OF THE LAKE ST. MARTIN FIRST NATION,
NORMAN TRAVERSE AND COUNCILLORS BRADLEY BEARDY,
ROBERT MOORE, CLARENCE MORSE, ALBERT ROSS,
PETER ROSS, AND ELMER TRAVERSE AND
CANDIDATE FOR CHIEF MARVIN SINCLAIR,
Applicants
- and -
EVA WOODFORD, ELVA McCORRISTER AND
BUNNIE SKLEPOWICH AND CANDIDATES FOR
CHIEF JEREMIAH MARSDEN AND GEORGE BEARDY AND
COUNCILLORS IDA ROSS AND CLAUDE ROSS AND
CANDIDATES FOR COUNCILLOR BRIAN ROSS, ANTHONY MARSDEN,
TERRY SUMNER, EMERY STAGG, ALEX MARSDEN
GRACE ANDERSON AND ADRIAN SINCLAIR,
Respondents
REASONS FOR ORDER
(Delivered from the Bench at Winnipeg,
Manitoba, on Monday, July 31, 2000)
ROTHSTEIN J. (ex officio)
[1] This is a motion for an interlocutory injunction enjoining the chief and councillors elected at a July 4, 2000 election of the Lake St. Martin First Nation from assuming office until determination of the judicial review in this matter. The basis of the judicial review is alleged impropriety in the polling at the election. The application is brought by some defeated candidates for chief and councillors but includes some councillors who were themselves elected.
[2] The respondents are three election officials recommended by band council resolution and appointed by the Department of Indian Affairs, the chief and councillors who were elected in the July 4, 2000 election and a defeated candidate for chief.
[3] The respondents make two preliminary objections to the application. The first is that there is no decision of a federal board, commission or other tribunal at issue. They say that the applicants are only challenging the results of an election. The second preliminary objection is that there is an adequate alternative remedy in the form of an election appeals procedure set forth in the Indian Band Election Regulations C.R.C. 952 which applies to the Lake St. Martin band. The respondents say this regulatory appeals procedure is an adequate alternative remedy and that resort to judicial review is inappropriate (see Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3).
[4] While I am inclined to think that the respondents" preliminary arguments are well taken, it is not necessary to decide the interlocutory injunction application on those points. Although I am satisfied, having regard to the low applicable threshold of proof, that there is a serious issue of election irregularities here, the applicants have simply not demonstrated irreparable harm, without which there is no entitlement to the interlocutory injunction they seek.
[5] The irreparable harm alleged to be suffered is:
| 1. retribution from the successful candidates against the applicants; |
| 2. gridlock in respect of the governance of the First Nation in that there are two groups claiming to be chief and council, resulting in chaos and uncertainty; and |
| 3. confusion and irreparable harm to third parties who deal with the First Nation. |
[6] The law is well settled that evidence of irreparable harm must be clear and not speculative. The simple assertion of retribution is not supported by any facts as to what form the retribution will take or what its nature would be. It is insufficient as evidence of irreparable harm.
[7] Claims of gridlock, chaos and uncertainty because two groups claim to be chief and council do not lie in the mouths of the applicants. Applicants for injunctive relief appearing before the Court are assumed to abide by the rule of law. If no interlocutory injunction is granted, those who were successful in the July 4, 2000 election will assume office and will remain in office until determination of this judicial review or any appeal taken under the Indian Band Election Regulations which may remove them from office. Failing such an outcome, they will remain in office until expiry of their terms, unless removed for some other legally justified reason. The only way gridlock, chaos and confusion will arise is if the unsuccessful applicants refuse to abide by the results of the election pending determination of the judicial review or appeal. Gridlock, chaos and confusion caused by unsuccessful applicants for an interlocutory injunction refusing to abide by the Court"s decision does not constitute irreparable harm.
[8] As to third parties, the Court was told that the band is under administration. Third parties will deal with the administrator. The applicants have not shown that third parties will be subject to confusion as a result of the denial of the interlocutory injunction application.
[9] The applicants having failed to demonstrate irreparable harm, the interlocutory injunction application is dismissed.
[10] The respondents are entitled to costs as follows:
| (a) Woodford, McCorrister and Sklepowich |
| Counsel fee $4,000 |
| Disbursements $1,000 |
G.S.T.
| (b) The other respondents |
| Counsel fee $4,000 |
| Disbursements $1,000. |
G.S.T.
"Marshall Rothstein"
Judge