Date: 20030116
Docket: T-1707-02
Neutral citation: 2003 FCT 36
Toronto, Ontario, Thursday, the 16th day of January, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
LONNIE DODGE
Applicant
- and -
LARRY JOHNSON, FRANKLIN SOLOMON, THE CALDWELL FIRST
NATION OF POINT PELEE AND PELEE ISLAND BAND COUNCIL AND
JOHN C. PETERS
Respondents
REASONS FOR ORDER AND ORDER
Introduction
[1] Mr. Lonnie Dodge (the "Applicant") brings a motion for an interim injunction and further relief pursuant to section 18.2 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, and Rule 373 of the Federal Court Rules, 1998, SOR/98-106. In particular, he seeks the following relief as set out in his Notice of Motion:
1. An interim injunction restraining the holding of an election of the Caldwell First Nation (Indian Band) of Point Pelee and Pelee Island until after the hearing of action T-850-99 by the Federal Court - Trial Division, or alternatively, until after the hearing of this application T-1707-02;
2. An interim injunction and order of mandamus barring the respondents and any alleged returning officer or elections officer from holding any election of the Caldwell First Nation (Indian Band) of Point Pelee and Pelee Island without appropriate and properly passed Band Council Resolutions prior to the holding of the election and the appointment of the returning officer or the elections officer for said election;
3. An interim order appointing as receiver/manager to act on behalf of the Band pending the disposition of this action and the disposition of other actions pending in the Federal Court - Trial Division and the Superior Court of Ontario, Band Councilors Lonnie Dodge and Melody Watson to supervise and attend to Band business and finances; or alternatively, the appointment of a firm of chartered accountants willing to so act;
4. An interim injunction restraining the respondent, Larry Johnson from acting in any manner purporting to be the Chief of the Caldwell First Nation (Indian Band) of Point Pelee and Pelee Island until the holding of a Band Council (Franklin Solomon, Melody Watson and Lonnie Dodge) meeting;
5. An interim injunction that the respondents send no further communications to Band members of the Caldwell First Nation (Indian Band) of Point Pelee and Pelee Island unless authorized to do so by actions of a duly called meeting of the Band council (Franklin Solomon, Melody Watson and Lonnie Dodge) and an order of mandamus compelling the disclosure of the addresses of all Band members to the applicant and Band councilor herein and Band councilor Melody Watson;
6. An interim order that no expenditure be made, including the signing of any cheques, without the authorization of the Band Council (Franklin Solomon, Melody Watson and Lonnie Dodge) of the Caldwell First Nation (Indian Band) of Point Pelee and Pelee Island;
7. An interim order compelling the respondent, Larry Johnson to call a Band Council meeting of the properly constituted Caldwell First Nation (Indian Band) of Point Pelee and Pelee Island within thirty (30) days of the hearing of this application and to hold such Band Council meetings on a monthly basis.
8. An interim order compelling the removal of Jim Mays as solicitor for the Caldwell First Nation of Point Pelee and Pelee Island Band Council in this application.
9. An order that for any meetings held until the hearing of this action that the Indian Band Council Procedure Regulations, C.R.C. 1978, c. 950, as amended, apply to the Caldwell First Nation (Indian Band) of Point Pelee and Pelee Island;
10. Such further and other relief as to this Honourable Court seems just; and
11. Costs of this action on a Solicitor and his own client basis.
[2] The Applicant is seeking to enjoin an election now scheduled for February 1, 2003, for the election of a Chief and Band Council of the Caldwell First Nation of Point Pelee and Pelee Island. The Applicant seeks the injunction restraining the holding of such election until after the hearing of cause number T-850-99 or alternatively, until the adjudication of this application for judicial review.
[3] The underlying application for judicial review alleges a number of breaches of Band election procedure contrary to the Indian Act, R.S.C. 1985, c. I-5, as amended (the "Act"), the Indian Band Council Procedure Regulations, C.R.C. 1978 c. 950 (the "Regulations") and the custom of the Band, as well as alleged breaches in the daily operations of the Band Council, contrary to the Act, the Regulations and custom of the Band.
[4] The Applicant is a member of the Pelee Island Band Council. The Respondent, Larry Johnson, is currently Chief of the Caldwell First Nation of Point Pelee and Pelee Island. The Respondent, Franklin Solomon, is another member of the Council. The Caldwell First Nation of Point Pelee is a First Nations Band and the Respondent Pelee Island Band Council is the Council comprised of the Applicant, the Respondent Larry Johnson, the Respondent Franklin Solomon and Melody Watson, who is not a party to this application. Mr. John C. Peters is a lawyer who has been appointed as the election returning officer in connection with the election scheduled for February 1, 2003.
[5] The Applicant and other members of the Council were elected to their respective positions on June 9, 2001. The Respondent Chief has held the position as Chief of the Caldwell First Nation since 1987. At that time, he succeeded his father, Carl Johnson, as Chief.
[6] The Caldwell First Nation is a custom Band and as such, it is not subject to the provisions of the Act governing elections, that is section 74. The Applicant argues that the Band custom requires a general meeting prior to calling an election. The Applicant says that the Respondent Chief Johnson has ignored the customary practises of the Band and has unilaterally called the election now scheduled for February 1, 2003. Furthermore, the Applicant says that the Respondent Chief has unilaterally determined the process by which the election is to be conducted without prior consultation with the Council.
[7] The Applicant also argues that reliance upon a petition that originated with a brother of Chief Johnson is improper and contrary to the custom of the Band.
[8] The record shows that the election "call" started with a petition that was circulated among the Band membership. The petition originated from Carl Johnson, a brother of the Respondent Chief. The petition obtained 91 signatures. A subsequent mail-out seeking approval to hold the election received 85 affirmative answers.
[9] The Applicant also alleges that there are irregularities in the maintenance of records concerning membership in the Band and eligibility to vote.
[10] The Respondents take the position that there is ample evidence to show that the current election has been called in accordance with an evolving custom of the Band, including compliance with the decision of the Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203. Furthermore, they say that a challenge to determination of membership and maintenance of a voters list is irrelevant to the present application which solely addresses the legality of the election scheduled for February 1, 2003.
[11] The Respondents argue that the Applicant has failed to demonstrate that a serious issue arises from his present motion for an interlocutory injunction, specifically in relation to the alleged custom of the Band. In response, the Respondents argue that there is ample evidence to show that elections have been called in the past without a general meeting requesting them and in any event, circulation of a petition which obtained 91 signatures in favour of an election is a demonstration of the will of the membership to have an election. The Respondents say that the custom of the Band has always been governed by an expression of the will of the people in the matter of calling an election and according to the materials filed, the pending election for February 1, 2003 is a response to a popular request for same.
[12] In the course of his cross-examination, the Respondent Chief repeatedly described the current Council of which the Applicant is a member as a dysfunctional Council incapable of conducting Band business. On the other hand, the Applicant says that the Respondent Chief has improperly and illegally refused to call Council meetings for the conduct of Band business.
[13] The record shows that there was one, antagonistic Band Council meeting held on July 29, 2002 with members of the Band Council elected in June, 2001, that is with the Applicant, the Respondent Chief, the Respondent Solomon and Councilor Melody Watson. The Applicant claims that Chief Johnson dominated this meeting and did not allow any matter, beyond his own agenda, to be discussed.
[14] The record also shows that the Respondent Chief convened meetings with two members of the preceding Council, for the purpose of conducting Band business, including the execution of agreements with the Department of Indian and Northern Affairs Canada for the purpose of obtaining Band funding. When this came to the attention of government officials, funding for the year 2002 was halted pending proper execution of the funding agreement by duly elected councilors. This irregularity was addressed by an official of the Department in correspondence dated June 20, 2002 and at a meeting held on August 30, 2002.
[15] However, it is clear from the record, including the cross-examination of the Applicant upon the affidavits filed for use in this motion, that no meeting of the Council has been called to deal with the matter of the outstanding funding arrangements and that he has not signed any documents in connection with the funding arrangements. He takes the position that in the absence of the receipt of information concerning the current financial situation of the Band, he is unable to sign any agreements relating to funding from the government.
[16] The focus of the present motion is an injunction to restrain the holding of an election on February 1, 2003. In order to succeed on his motion, the Applicant must meet the tripartite test for the granting of an interlocutory interim injunction, pursuant to the principles stated in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385 (S.C.C.). The Applicant must show that the underlying application for judicial review raises a serious issue for trial, that irreparable harm will result to him if the relief sought is denied and that the balance of convenience lies in his favour.
[17] There is sufficient evidence on the record to demonstrate that the internal governance of the Caldwell First Nation band is in disarray. The problems with the operation of the Band Council cannot be laid solely at the feet of the Applicant; there is evidence to suggest that the Respondent Chief bears responsibility as well.
[18] On the basis of the record before me, including the affidavits of the Applicant and the Respondent Chief, the exhibits attached to these affidavits and the transcripts of cross-examinations conducted on these affidavits, I am satisfied that the Applicant has established that there is a serious issue for trial. He has met the first branch of the test.
[19] Also, there is conflicting evidence as to the custom of the Band relative to the calling of and conduct of elections for Band Council. These are serious issues in connection with the underlying application for judicial review brought by the Applicant and are relevant to the present motion for an interlocutory interim injunction.
[20] The next issue for consideration is whether the Applicant has established that he will suffer irreparable harm if he is denied the relief sought. Although the Applicant purports to bring the present motion in his capacity as a Band Councillor, the jurisprudence is clear that in the matter of granting an interim interlocutory injunction, the Applicant must show that he himself will suffer irreparable harm.
[21] In this regard, I refer to RJR-Macdonald, supra and Monsanto Canada Inc. v. Novorpharm Ltd. (1996), 72 C.P.R. (3d) 40 (F.C.T.D.). As well, the jurisprudence establishes that evidence in support of irreparable harm must be clear and non-speculative; see Nature Co. v. Sci-Tech Educational Inc. (1992), 141 N.R. 363 (F.C.A.) and Lake St. Martin First Nation v. Woodford, [2000] F.C.J. No. 1242 (T.D.)(QL).
[22] In Eli Lilly and Co. v. Novopharm Ltd. (1996), 69 C.P.R. (3d) 455 (F.C.A.), the Federal Court of Appeal said as follows at page 457:
It is trite law in our Court that a plaintiff seeking an interlocutory injunction must establish with clear evidence that it, as opposed to another person or party, will suffer irreparable harm. That burden is not an easy one for the remedy is an extraordinary one that will not be granted unless the applicant convinces the court, inter alia, that damages at common law would not provide an adequate remedy if the court refused to grant the injunction. [Footnote omitted]
[23] In the present case, the Applicant has failed to show that he personally will suffer irreparable harm if the election proceeds as scheduled on February 1, 2003. According to the transcripts of the cross-examination conducted of the Respondent Chief, the Applicant is a candidate for election to Council in the pending election. The Respondent Chief is one of two candidates for the position of the Band Chief. According to these cross-examinations, both the Applicant and the Respondent Chief recognize that either of them may be unsuccessful in the pending election. The possibility of losing the election does not constitute irreparable harm.
[24] The Applicant challenges the legality of the process leading up to the election scheduled for February 1, 2003. While I am satisfied that there is sufficient conflict in the evidence concerning Band custom for calling an election, this evidence does not support the allegation that irreparable harm will result to the Applicant should the election proceed.
[25] The situation for the Applicant involved in this case is clearly different from the applicant in Sound v. Swan River First Nation, 2002 FCT 602, [2002] F.C.J. No. 790 (T.D.)(QL), where the Court found irreparable harm existed and granted an interlocutory injunction enjoining the occurrence of a by-election because the applicant was ineligible to run in the election. The applicant there contested whether the decision to remove him from Council and hold a byelection was made in a fair, non-biased manner. Allowing the election in those circumstances would have irreparably harmed the applicant's interests, but in the present case, the Applicant has the opportunity to run, and is in fact running, in the upcoming election for Chief and Band Council.
[26] It is the nature of an electoral process that people express their choices. According to the record, the Band members do have a choice in the matter of electing a new Chief and a new Band Council. The results of the election will speak for themselves. If it is subsequently determined that the process leading up to the election call was improper or illegal, a remedy lies in the underlying judicial review that forms the foundation for this motion.
[27] The Applicant has failed to meet the second branch of the tripartite test. Accordingly, his motion fails. In these circumstances, it is not necessary to consider the third aspect, that is the balance of convenience.
[28] I turn briefly to the other relief sought in this motion. For the most part, the various injunctive orders sought by the Applicant, as identified earlier in these reasons, relate to the governance of the Band. It is noteworthy that the Applicant seeks the same or similar relief in the underlying application for judicial review.
[29] It is not appropriate, in my opinion, to deal with these matters on an interlocutory basis. The Applicant has sought an injunction against the holding of an election on February 1, 2003 and he has not succeeded on that motion, primarily due to the lack of evidence to show irreparable harm.
[30] I would observe that insofar as he seeks the appointment of a receiver/manager to act on behalf of the Band pending the disposition of this application, that he faces the same tripartite test that he failed to satisfy on the motion for an injunction against the holding of the election. In this regard, I refer to Buffalo v. Canada, [1993] 1 C.N.L.R. 39, 57 F.T.R. 151 (T.D.).
[31] In my opinion, the Applicant has failed to show that a serious issue arises in relation to this issue. I refer to the financial statements that are attached to his affidavit. While this information may not satisfy the Applicant, it certainly falls short of raising a concern about the financial stability of the Band.
[32] Furthermore, I find that the Applicant has failed to show that irreparable harm will result to him if a receiver is not appointed at this time. Finally, the Applicant has failed to show that he himself is qualified to be appointed as a receiver.
[33] The motion is dismissed, costs in the cause.
ORDER
The motion is dismissed, costs in the cause.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: T-1707-02
STYLE OF CAUSE: LONNIE DODGE
Applicant
- and -
LARRY JOHNSON, FRANKLIN SOLOMON, THE CALDWELL FIRST NATION OF POINT PELEE AND PELEE ISLAND BAND COUNCIL AND JOHN C. PETERS
Respondents
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING:MONDAY, JANUARY 13, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: THURSDAY, JANUARY 16, 2003
APPEARANCES BY: Mr. Stanley G. Mayes
For the Applicant
Ms. Carol L.Godby
Mr. Gerard T. Tillman
For the Respondents
SOLICITORS OF RECORD: Mr. Stanley G. Mayes
Barrister & Solicitor
16 Victoria Avenue
Chatham, Ontario
N7L 2Z6
For the Applicant
Page: 2
SOLICITORS OF RECORD: Cohen Highley LLP
(cont'd) Barristers & Solicitors
One London Place, 11th Floor
225 Queens Avenue
London, Ontario
N6A 5R8
And
Harrison Pensa LLP
Barristers & Solicitors
450 Talbot Street
P.O. Box 3237, Stn. B
London, Ontario
N6A 4K3
For the Respondents
FEDERAL COURT OF CANADA
Date: 20030116
Docket: T-1707-02
BETWEEN:
LONNIE DODGE
Applicant
- and -
LARRY JOHNSON, FRANKLIN SOLOMON, THE CALDWELL FIRST NATION OF POINT PELEE AND PELEE ISLAND BAND COUNCIL AND JOHN C. PETERS
Respondents
REASONS FOR ORDER
AND ORDER