Date: 19990712
Docket: T-2195-98
BETWEEN:
CHIEF ALVIN CARDINAL
Applicant
AND:
NORMAN CALLIOU, JOHN WILLIER, RODERICK WILLIER,
RONALD WILLIER AND RUSSELL WILLIER PURPORTING TO ACT AS
THE COUNCIL OF THE SUCKER CREEK INDIAN BAND NO. 150A
Respondents
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of the respondents dated November 11, 1998, resolving to remove the applicant as duly elected Chief of the Sucker Creek Indian Band. In addition, the applicant seeks a declaration that he has been the Chief of the band continuously since his election on November 28, 1997.
[2] The Sucker Creek First Nation is governed by the Customary Election Regulations approved by Ministerial Order dated January 28, 1997. On November 28, 1997, the applicant, Alvin Cardinal, was elected Chief for a three year term. Approximately one year later, on October 23, 1998, the Band Administrator, Mr. Brian Kelly, received a petition purportedly signed by one-hundred and nineteen members of the Sucker Creek First Nation, seeking immediate removal of Chief Cardinal from office. On the same date, Mr. Kelly received a note from one Margaret Koski requesting that the Chief and Council meet with the Membership on Monday, October 26, 1998, at 1:30 p.m. in the Recreation Centre. Mr. Kelly then circulated a memo to the Chief and Council informing them of the request for a meeting. Three of the respondents, Norman Calliou, Ronald Willier and Russell Willier, attended the meeting although no other members of the Council were present nor was the applicant.
[3] Thereafter, on October 29, November 2 and November 11, 1998, band meetings were held in order to discuss the petition. Although the respondents alleged that written notices of these meetings were sent to Chief Cardinal there was no evidence before the Court to establish this fact. The evidence does show that the applicant received notice of the November 11th meeting and that on November 4, 1998, his lawyer sent a letter to the Council seeking clarification of the charges which he had to meet and also requesting an adjournment of the meeting.
[4] An adjournment was denied and no further information was sent to the applicant or his counsel with respect to the allegations set out in the petition. The meeting of November 11, 1998, proceeded in the absence of Chief Cardinal and during the course of the meeting the Band Council passed the impugned resolution removing him from the office of Chief.
[5] As a result of the removal, it was determined that a by-election would be required and, by resolution dated November 16, 1998, Allen Willier was elected as Electoral Officer for the purposes of the by-election. By letter dated November 20, 1998, Mr. Willier, in his capacity as Electoral Officer, wrote the applicant advising him that if he intended to appeal the decision of November 11, 1998, he must do so no later than Tuesday, November 24, 1998. Chief Cardinal did not file a Notice of Appeal pursuant to the Customary Election Regulations but rather commenced his judicial review application in this Court on November 24, 1998.
[6] The applicant now seeks to have the Band Council Resolution set aside on the grounds that the procedure followed by the Council failed to comply with the Customary Election Regulations; that in making its decision, the Council exceeded its jurisdiction by considering irrelevant considerations and failing to consider relevant ones; and, that the Council failed to observe the principles of natural justice by failing to provide the applicant with proper notice, a hearing and an opportunity to make submissions as required by the Customary Election Regulations.
[7] I am prepared to allow the application for the following reasons.
[8] The relevant sections of the Customary Election Regulations provides as follows:
| 15.2b) While in office, they engage in drunk, disorderly or irresponsible conduct at Council meetings, community meetings or in other public forums or functions which interferes with the conduct of business or brings the reputation of the Sucker Creek First Nation or the Council into disrepute: |
| 15.2i) While in office, they fail to comply with the By-laws and stated policies of the Sucker Creek First Nation. |
| 15.3 Upon receipt of a petition signed by at least fifty percent plus one (50%+1) Electors stating one or more of the grounds set forth in 15.1 and 15.2 for seeking the removal of a named Chief or Councillor, the Council will convene a special meeting of the Council to consider the removal of the Chief or Councillor from Office. |
| 15.4 The Chief or Councillor who is the subject of the petition shall be allowed to present written or oral evidence. |
| 2k) "Elector" means a person whose name is entered on the First Nation's Membership List, and a resident on reserve, and is the full age of eighteen (18) years on or before the day of the Election or By-Election |
[9] In the present case, the petition presented to the respondents failed to comply with section 15.3 of the Regulations as it did not contain 50% plus 1 signatures of the electors. At most, the petition contained one-hundred and nineteen signatures. However, as of October 17, 1998, the number of eligible voters was two-hundred and fifty-three, 50% of which is one-hundred and twenty-six, plus one being one-hundred and twenty-seven eligible voters which were required to sign the petition before Council had any jurisdiction to take action under the Customary Election Regulations.
[10] Furthermore, the petition was brought by Margaret Koski who is not eligible as an "elector", as that term is defined in the Regulations, and who was not therefore, a person who was entitled to institute such a petition.
[11] I turn now to the subject matter of the petition itself and the grounds of removal set out therein. Section 15.3 of the Regulations is clear that certain conduct must be present before a Chief or Councillor can be removed from office; namely, drunken, disorderly or irresponsible conduct at a Council or community meeting or in a public forum and which interferes with the conduct of business, or conduct which brings the reputation of the Sucker Creek First Nation or Council into disrepute.
[12] There is simply no evidence of any conduct of that nature having been committed by the applicant in this case. The real complaint of the Council was that Chief Alvin Cardinal walked out of a Band meeting on October 17, 1998, making certain comments with which Band members were not happy. The Council was also displeased with Chief Cardinal's decision in September of 1998 to hire an individual, who was not a Band member, as equipment foreman, without advising the Council that the position was open. In addition, the applicant, without the knowledge and consent of the Council, granted a contract to a company known as DDM Oil Fuel Construction. However legitimate these grievances may seem to the respondents, they nevertheless do not substantiate grounds for removal from office pursuant to section 15.2 of the Customary Election Regulations.
[13] Nor am I persuaded that the respondents have complied with section 15.4 of the Regulations which provides that a Chief or Councillor who is the subject of a petition for removal shall be allowed to present written and oral evidence. There is serious doubt here as to whether Chief Cardinal received proper notice of the band meetings which were held with respect to the petition. The evidence does establish that he was informed of the November 11, 1998, meeting but that his request for an adjournment was refused. In addition, by letters dated November 4, 1998, and November 6, 1998, counsel for the applicant requested clarification of, and an opportunity to address, the matters raised by the allegations purportedly raised in the petition. No response to these requests were forthcoming. As a result, the respondents made their decision without the benefit of hearing from Chief Cardinal or allowing him an opportunity to make submissions in his defence. This was clearly a breach of the Regulations and the principles of natural justice which section 15.4 of the Regulations embodies and is sufficient reason, in and of itself, to set aside the respondent's decision.
[14] Indeed, the only real defence which is put forward by the respondents in this judicial review application is that Chief Cardinal had an alternative remedy open to him by way of an appeal. They rely on section 15.5 of the Customary Election Regulations which provides as follows:
| 15.5 If a person does want to appeal this decision, the same procedure for an Election appeal will be followed. |
[15] Section 12 sets out the procedure to be followed for Election Appeals:
| 12.2(a) An appeal may be made by forwarding a Notice of Appeal in writing to the Electoral Officer at the Council Offices outlining the grounds for the Appeal. |
| (b) The Notice of Appeal must be received by the Council within fourteen (14) days from the election Day, or in the case of an Election by acclamation, within fourteen (14) days from the nomination meeting giving rise to the Appeal. |
| 12.4 (a) There will be nine members in the Appeal Committee, volunteers will be asked for at the Nomination meeting |
| (b) Three Elders, three people ages 31-64 and three people ages 18-30, to be selected at random by the Electoral Officer, if needed. |
| (c) To be a member on the Appeal Committee you must not be a part of the immediate family of the candidate in question or the person appealing. |
| (d) If enough volunteers can not be found, then the Lesser Slave Lake Police Commission will be asked to the Appeal Committee. |
[16] In determining whether there is an adequate alternative remedy open to an individual who is affected by a decision-makers actions, the Court is required to take into account a number of factors. In Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, Chief Justice Lamer made the following comments with respect to the adequate alternative remedy principle at pp. 31-32:
| . . . I conclude that a variety of factors should be considered by courts in determining whether they should enter into judicial review, or alternatively should require an applicant to proceed through a statutory appeal procedure. These factors include: the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). I do not believe that the category of factors should be closed, as it is for courts in particular circumstances to isolate and balance the factors which are relevant. |
| In this case, when applying the adequate alternative remedy principle, we must consider the adequacy of the statutory appeal procedures created by the bands, and not simply the adequacy of the appeal tribunals. This is because the bands have provided for appeals from the tribunals to the Federal Court, Trial Division. I recognize that certain factors will be relevant only to the appeal tribunals (i.e., the expertise of members, or allegations of bias) or to the appeal to the Federal Court, Trial Division (i.e., whether this appeal is intra vires the bands). In applying the adequate alternative remedy principle, all these factors must be considered in order to assess the overall statutory scheme. |
[17] Applying these principles to the present case, I am satisfied that the provisions for appeal in the Customary Election Regulations are not an adequate remedy. The respondents purported to make a Band Council Resolution to remove Chief Cardinal on November 11, 1998. On November 20, 1998, there was no Electoral Officer in place as no resolution of appointment had been received by the individual who was later appointed Electoral Officer. Furthermore, there was no Election Appeal Committee in place nor could there be because of the provisions of section 12.4 of the Regulations. The Nomination Meeting was set for November 27, 1998. Therefore, in accordance with section 12.4, there could not be a valid Election Appeal Committee prior to that date. Neither is there any evidence that there was a request for volunteers at the nomination meeting, if such a meeting was in fact ever held.
[18] Since the officers and appeal committee required for an appeal under the Regulations did not, and could not, exist on the necessary dates, it follows that an appeal under the Customary Election Regulations could not provide the applicant with an adequate remedy. Accordingly, judicial review is the appropriate method of challenging the impugned decision.
[19] For these reasons, the application is granted. The Band Council Resolution of November 11, 1998, is set aside and the applicant, Chief Alvin Cardinal, has been and remains, the Chief of the Sucker Creek First Nation at all times since his election on November 28, 1997.
JUDGE
OTTAWA, Ontario
July 12, 1999