Marcel Colomb First Nation v. Colomb

Marcel Colomb First Nation v. Colomb
Court (s) Database
Federal Court Decisions
Date
2016-11-15
Neutral citation
2016 FC 1270
File numbers
T-1335-16, T-1442-16
Notes
A correction was made on December 13, 2016
Decision Content
Date: 20161115
Dockets: T-1335-16
T-1442-16
Citation: 2016 FC 1270
Ottawa, Ontario, November 15, 2016
PRESENT: The Honourable Mr. Justice Russell
Docket: T-1335-16
BETWEEN:
MARCEL COLOMB FIRST NATION, AS REPRESENTED BY CHIEF CHRISTOPHER COLOMB, COUNCILLOR SUZANNE HART, COUNCILLOR DOUGLAS HART AND COUNCILLOR GORDON COLOMB
Applicants
and
ELISE COLOMB, CRYSTAL MICHELLE AND EUSTACHE SINCLAIR
Respondents
Docket: T-1442-16
AND BETWEEN:
ELISE COLOMB, CRYSTAL MICHELLE, AND EUSTACHE SINCLAIR, IN THEIR PERSONAL CAPACITY AND IN THEIR CAPACITY AS THE MARCEL COLOMB ELECTION COMMITTEE
Applicants
and
CHRISTOPHER COLOMB, SUZANNE HART, DOUGLAS HART, GORDON COLOMB, PRISCILLA COLOMB, EVELYN SINCLAIR, ANGEL CASTEL, SARAH COPAPAY, URGEL LINKLATER, JOSEPH COLOMB, SOLOMON BIGHETTY, MARK D’AMATO AND TERRY LALIBERTY
Respondents
JUDGMENT AND REASONS
I. THE APPLICATIONS [1] In T-1442-16, the Applicants are seeking the following relief:
1. An order that the Application be heard on an expedited and urgent basis;
2. A declaration that on or about March 16, 2016, the Marcel Colomb First Nation Election Appeal Committee (“MCFN Election Appeal Committee”) did not meet, did not conduct any election appeal hearing, did not make any election appeal decision, and did not make a decision voiding the results of the February 1, 2016 election for Chief and Council.
3. A declaration that pursuant to the Marcel Colomb First Nation Election Law (“MCFN Election Law”), even where the persons claiming to be election appeal committee members are in fact genuine members of that body:
a. The quorum requirement for members of election appeal committee to convene a duly called meeting is all 3 of their members;
b. They have no jurisdiction and no authority to convene a meeting or make a decision where no written appeal has been launched within the 4 days after the election.
c. By virtue of section 4(2), their authority does not extend to calling for or authorizing new elections, and that the authority to call new elections in instances where an elected candidate did not breach any provisions of the election law rests only with the election committee.
4. A declaration that any office as election appeal committee members that any of the Respondents Joseph Colomb, Urgel Linklater or Solomon Bighetty may have had, expired prior to the March 16, 2016 purported decision (by two of them, Joseph Colomb and Urgel Linklater) pursuant to which they claimed to have annulled the election results of February 1, 2016.
5. A declaration that the March 16, 2016 purported decision of Urgel Linklater and Joseph Colomb by which a [sic] they purported to decide or claim that the office of the Chief and Council elected on February 1, 2016 was vacant, is of no force and effect;
6. An order in the nature of quo warranto that the Respondents Joseph Colomb, Urgel Linklater and Solomon Bighetty do not hold the positions of members of the MCFN Election Appeal Committee.
7. Alternatively, if the decision of Joseph Colomb and Urgel Linklater, was in fact a decision of a duly constituted election appeal committee, then:
a. An order, if required, under section 18.1(2), extending the 30 day time limit to seek judicial review; and
b. An order quashing that decision and being contrary to law, unreasonable and in breach of natural justice.
8. A declaration that the May 16, 2016 unchallenged decision by Elise Colomb, Crystal Michelle, and Eustache Sinclair, in their capacity as the Marcel Colomb Election Committee (“MCFN Election Committee”), wherein they confirmed that the then proposed May 16, 2016 Chief and Council election process was not a valid Band election, and decided that there would not be new elections, was a decision of the MCFN Election Committee.
9. A declaration that the Applicants, Elise Colomb, Crystal Michelle, and Eustache Sinclair continue to and currently hold office as the members of the MCFN Election Committee.
10. A declaration that the purported May 16, 2016 election process, by which the Respondents Christopher Colomb, Suzanne Hart, Douglas Hart, and Gordon Colomb claim to have been elected as the Band’s Chief and Council, was not an election process under the MCFN Election Law, and is not binding on the Band.
11. A declaration that the Respondents Christopher Colomb, Suzanne Hart, Douglas Hart, and Gordon Colomb are not the elected Chief and Council of the Band.
12. An order in the nature of quo warranto that the Respondents Christopher Colomb, Suzanne Hart, Douglas Hart and Gordon Colomb Joseph Colomb, Urgel Linklater and Solomon Bighetty do not hold the positions of the Chief and Council of the Band.
13. A declaration that that the alleged Band Council Resolution of March 17, 2016 by which Christopher Colomb, Gordon Colomb, Douglas Hart and Suzanne Hart in their claimed capacity as Chief and Council of the Band sought to change the Band’s signing authorities for the Band’s financial accounts, is not a decision of the Band’s Chief and council, and is of no force and effect.
14. A declaration that the alleged Band Council Resolution of August 12, 2016 by which Christopher Colomb, Gordon Colomb, Douglas Hart and Suzanne Hart in their claimed capacity as Chief and Council of the Band purported to terminate the services of Mark D’Amato and Terry Laliberty, (the Co-managers), is not a decision of the Band’s Chief and Council, and is of no force and effect.
15. If either of the impugned decisions referred to above by Christopher Colomb, Gordon Colomb, Douglas Hart and Suzanne Hart are in fact decisions of the Band’s Chief and Council, then:
a. An order, if required, under section 18.1(2), extending the 30 day time limit to seek judicial review; and
b. An order quashing that decision and being contrary to law, unreasonable and in breach of natural justice.
16. An order that the financial affairs of the Band are to be managed by Mark D’Amato and Terry Laliberty (the Co-managers) in the same manner that they were managed prior to the election of May 16, 2016 in accordance with the agreement between the Band and the Co-managers and as approved by Indigenous and Northern Affairs Canada (“INAC”, formerly AANDC.)
17. An order either:
a. Declaring that the persons elected on February 1, 2016, being Priscilla Colomb, Evelyn Sinclair and Angel Castel, and Sarah Copapay are the Chief and council of the band with their terms to expire on February 1, 2020; or
b. Ordering new elections under the MCFN Election Law for the office of Chief and Council, together with an order:
i. Confirming that the Applicants will serve as the Band’s election committee for that election, or alternatively directing who shall serve as the Election committee for that election;
ii. Appointing an independent electoral officer to conduct those elections or directing who is to have authority to make such an appointment;
iii. Appointing an independent election appeal committee to consider any duly filed appeals in respect of the new election, or directing who is to have authority to make such an appointment;
iv. Specifying both the nomination date and the election date for such elections;
v. Providing such further direction as will ensure that any new election process is conducted in accordance with MCFN Election Law.
18. Interlocutory orders pending a full and final hearing of the application herein and in Court file T-1335-16:
a. That the Respondents Priscilla Colomb, Evelyn Sinclair, Angel Castel and Sarah Copapay, being the Band Council elected on February 1, 2016 shall continue as the lawfully elected Chief and Council of the Band;
b. Prohibiting the Respondents Christopher Colomb, Suzanne Hart, Douglas Hart and Gordon Colomb from purporting to hold themselves out as the Band’s Chief and Council;
c. Prohibiting the Respondents Joseph Colomb, Urgel Linklater or Solomon Bighetty from purporting to hold themselves our as the MCFN Election Appeal Committee;
d. Prohibiting all parties from interfering with the financial administration activities that the Respondents Marl D’Amato and Terry Laliberty are authorized by their agreement with the Band to undertake.
e. Prohibiting all parties from contacting financial institutions to seek to change the signing authorities without the consent of the co-manager Mark D’Amato.
19. Costs of this Application on a solicitor and client basis; and
20. Such further and other relief as may be required and this Honourable Court may deem just.
[2] In T-1335-15, the Applicants are seeking the following relief:
a) an interim Order staying any further action pursuant to the Decision until the final disposition of this Application for judicial review and any appeals therefrom;
b) an interim Order that the individual Applicants continue as the lawfully elected Chief and Council of Marcel Colomb First Nation until the final disposition of this Application for judicial review and any appeals therefrom;
c) a writ of quo warranto against the Respondents and a declaration that the Respondents do not constitute the Election Committee of Marcel Colomb First Nation;
d) an Order quashing and setting aside the Decision;
e) costs of the within Application; and
f) such further and other Order as counsel may advise and this Honourable Court may permit.
II. PRESENT MATTERS [3] At this point in the dispute, the parties are before the Court on the following matters:
(a) In T-1442-16, the remaining Respondents have brought a motion to strike the application primarily on the grounds that it was knowingly filed out of time, intentionally violates the Federal Courts Rules, SOR/98-106 [Federal Courts Rules] and includes claims for relief that are beyond the jurisdiction of the Court to grant and for which the Applicants have no standing;
(b) In T-1442-16, the Applicants have brought a motion for an interlocutory injunction requesting:
1. An order pursuant to Rule 8 abridging the time for the hearing of this motion if necessary;
2. An order under Rule 105 consolidating these proceedings with the proceedings in court File No. T-1335-16.
3. An interlocutory order pending final disposition of these proceedings, that the financial affairs of the Marcel Colomb Cree Nation (the “Band”) are to be managed by Mark D’Amato and Terry Laliberty, the Band’s co- managers, in accordance with:
a. The Band Management and Capacity Development Agreement with Mark D’Amato and Terry Laliberty, executed on February 25, 2016.
b. The check signing authorities and procedures and financial controls put in place by the band and Mark D’Amato and Terry Laliberty prior to May 16, 2016.
4. An interlocutory order pending final disposition of these proceedings enjoining all persons, including all those claiming to be the band’s Chief and council, from:
a. Interfering with the due administration by the Co-managers Mark D’Amato or Terry Laliberty of the bands financial affairs.
b. Prohibiting all parties from interfering with the financial administration activities that the Respondents Mark D’Amato and Terry Laliberty are authorized by their agreement with the band to undertake.
c. Prohibiting all parties from contacting financial institutions to seek to change the signing authorities without the consent of the co-manager Mark D’Amato.
d. Taking steps to terminate the services of the Co-managers Mark D’Amato or Terry Laliberty, or to act upon any termination that any party claims has already taken place;
5. An interlocutory order pending final disposition of these proceedings that the respondents Priscilla Colomb, Evelyn Sinclair, Angel Castel and Sarah Copapay, being the band council elected on February 1, 2016 shall continue as the lawfully elected Chief and Council of the Marcel Colomb First Nation.
6. An interlocutory order pending final disposition of these proceedings prohibiting the Respondents Christopher Colomb, Suzanne Hart, Douglas Hart and Gordon Colomb from purporting to hold themselves out as the band’s Chief and council;
7. An interlocutory order pending final disposition of these proceedings prohibiting Joseph Colomb, Urgel Linklater or Solomon Bighetty from purporting to hold themselves out as the band’s Election Appeal Committee.
8. An order dispensing with the requirement to give an undertaking.
9. Costs on a solicitor and own client basis;
10. Such further and other relief as counsel may advise and this honourable court may deem just.
(c) In T-1335-16, the Applicants are asking the Court to decide the application itself.
III. BACKGROUND [4] The political, administrative and financial situation at Marcel Colomb First Nation [MCFN] is presently intolerable. A dispute over who are the legitimate Chief and Councillors has resulted in political and financial chaos, and both sides advise the Court that the band is suffering as a result.
[5] This untenable state of affairs was inevitable given the series of events that have taken place since February 2016. On February 1, 2016 [February Election], a general election was held and Priscilla Colomb was elected Chief, and Evelyn Sinclair, Angel Castel, and Sarah Copapay were elected Councillors [FCC].
[6] Another purported election was held on May 16, 2016 [May Election] in which 59 members voted (the total electorate is about 237). The evidence suggests that most Chief and Council elections at MCFN have a participation rate of between 101-117 members. Many electors boycotted this election because they believed it to be unauthorized and invalid. In the May Election, Christopher Colomb was elected Chief and Suzanne Hart, Douglas Hart and Gordon Colomb were elected Councillors [MCC].
[7] Inevitably, then, both the FCC and MCC claimed to be the legitimate Chief and Council of MCFN, and this dispute has evolved from that conflict.
[8] Initially, the FCC took no legal action to establish their legitimacy because they regarded the May Election as a complete sham that had come about as a result of a purported decision made by Urgel Linklater and Joseph Colomb on March 16, 2016 purporting to act as an Election Appeal Committee [EAC] which declared the February Election invalid and that FCC were not Chief and Council, and calling a new election for May 16, 2016 to fill the vacant positions.
[9] There is no doubt on the evidence before me that these individuals could not have been an EAC under the MCFN Election Law, that no appeal of the February Election ever occurred, that no EAC meeting took place, that no grounds for voiding the February Election existed and, that the documentation produced and circulated by this sham EAC and their cohorts was a complete fraud upon the MCFN electorate. In fact, these individuals – and those they acted for – have a lot to answer for because it was this documentation that purportedly paved the way for the May Election and the ensuing chaos that has resulted from that election. I will come to that evidence later, but it is notable that these individuals have not come forward in this dispute to answer for themselves or provide evidence, and have not responded to requests for information as to how they were able to act as EAC and/or how they were able to justify voiding the February Election and calling the May Election in which MCC were elected to Chief and Council.
[10] In terms of the MCFN Election Law, this means that the FCC have never been removed from office. So it is easy to understand why they took no legal action against MCC in light of such an obvious fraud practiced by the EAC. However, eventually the MCC were able to persuade the Royal Canadian Mounted Police and third parties, including Indigenous and Northern Affairs Canada [INAC], that they were a duly elected Chief and Council. Once this occurred, administration and governance at MCFN began to break down and the FCC were compelled to take legal action.
[11] Following the May Election, the FCC and Mark D’Amato, one of the MCFN’s co-managers under a Band Management and Capacity Development Agreement executed on February 25, 2016, as well as Elise Colomb, Crystal Michelle and Eustache Sinclair (parties in the matters before me who purport to be the MCFN Election Committee [EC] under the Election Law) went about trying to persuade the MCFN community that the May Election was not legitimate, but it was eventually decided that legal action was necessary and, on June 3, 2016 – some 76 days after the EAC decision of March 16, 2016 – commenced an application for judicial review of that decision in T-888-16 [888 Application].
[12] However, on July 27, 2016, the 888 Application was dismissed by Prothonotary Lafrenière somewhat informally on the basis of correspondence from counsel because he was not satisfied that the Applicants in the 888 Application had acted with due diligence in complying with Rule 306. The merits of the 888 Application were never heard or pronounced upon by Prothonotary Lafrenière.
[13] The implications of the dismissal of the 888 Application appear not to have been understood by the FCC and the EC until they appointed new legal counsel. However, it appears that the EC eventually decided that the only way out of an apparent legal impasse was to conduct a further election. The FCC agreed with this approach but the MCC did not, and MCC insisted that they were the legitimate Chief and Council of MCFN.
[14] So, on August 9, 2016, the EC announced that they were calling a new election. At this point, the MCC took legal action to prevent this from occurring and brought the application in
T-1335-16 to both prevent the election from taking place and to have the Court declare that the EC were, in fact, not an election committee under the MCFN Election Law and could not call an election.
[15] In response, the EC brought an application in T-1442-16 to have the Court review the whole situation and provide guidance on who were the legitimate Chief and Council of MCFN. This application refers to four decisions for review, but there is no doubt that the central issue remains the same: who are not the legitimate Chief and Council of MCFN.
[16] Various motions and cross-motions were initiated in both T-1335-16 and T-1442-16 and the legal chaos began to reflect the confusion at MCFN. Fortunately, Prothonotary Lafrenière stepped in as Case Manager and the parties agreed that the application in T-1335-16 could be dealt with now, without the need for interlocutory relief, and that MCC’s motion to strike and the EC’s motion for interim injunctive relief on T-1442-16 could be heard at the same time as the
T-1335-16 application. All of these matters are inter-related and the parties agree that the records filed for each can be used for my deliberations in deciding all three matters before me.
[17] The parties are in agreement that the central issue is, as I have stated above: which of FCC and MCC are the legitimate Chief and Council of MCFN. But they approach this basic issue from different directions. The EC wants me to decide the merits of who is the legitimate Chief and Council of MCFN, while MCC, in addition to wanting me to side-line the EC in the
T-1335-16 application, wants me to strike T-1442-16 in its entirety for being, in particular, out of time and nothing more than an end run on the decision the Court has already made by dismissing the 888 Application. At this point, MCC wishes to avoid the merits and, if T-1442-16 is struck, they assume that this will leave them as the legitimate Chief and Council of MCFN.
[18] It probably makes no difference which matter I deal with first because they all bring up the same facts and they all, to a greater or lesser extent, require the Court to consider the legitimacy issue. I think it best to start with MCC’s application in T-1335-16 because the central issue in this dispute has to be faced pretty well head-on in this application. By bringing the
T-1335-16 application in the name of the “Marcel Colomb First Nation,” the MCC has placed the issue of representative legitimacy firmly before me, and that issue has been raised and argued by the EC in response to the application.
IV. APPLICATION – T-1335-16 A. The MCC Position [19] Reduced to basics, the MCC argue in this application for quo warranto against the EC Respondents because the EC’s term of office expired in December 2015 and they were never re-appointed in accordance with the MCFN Election Law which governs such appointments. The MCC have provided the Court with a meticulous and well-argued account of the underlying facts and the relevant provisions of the Election Law to demonstrate that the EC could not have been a legitimate election committee and why it could not have legitimately called an election on August 9, 2016 and arrange for a nomination meeting thirty (30) days from that date.
B. The EC Position [20] While disagreeing with MCC’s arguments and grounds on the legitimacy of the EC and its powers to call an election on August 9, 2016, the EC are more emphatic that this application should be dismissed because:
(a) It is moot. The August 9, 2016 decision was rescinded and an election was never called; and
(b) The MCC have no standing to bring this application on behalf of MCFN because they are not the legitimately elected Chief and Council of MCFN.
[21] As always with the EC Respondents, the principal issue is legitimacy. They say in their written submissions that:
103. Whether or not the Respondents are the Election Committee of the band, those claiming to have been elected on May 16, 2016 are not the persons whom the band electorate has chosen as their leaders in any fair or inclusive election process.
104. The public interest requires that the electorate at the Marcel Colomb First Nation be allowed to choose their leaders in [a] fair election conducted in accordance with their electoral process, at which only those eligible to be candidates are elected to office.
105. If that group is not the Priscilla Colomb group, then a new electoral process is warranted, which should be run by a person appointed by the court to ensure a fair an [sic] inclusive election process.
106. In short, the band electorate deserves better than to have their affairs governed by a group that does not represent the will of the electorate.
107. If the Applicants are allowed to remain in office, their ascendancy to power is nothing short of an orchestrated coup that offends the rule of law, and strikes at the very heart of democracy.
C. Analysis [22] First of all, I disagree with the EC Respondents that this application is entirely moot. The August 9, 2016 decision to call an election may have been rescinded, and the EC may well have placed the central governance issue in the Court’s hands, but the MCC still want the Court to consider and rule upon the legitimacy of the EC and to order that the EC has no power to conduct or represent itself as an election committee, or to call an election at any time in the future.
[23] As regards standing, the MCC argue that the legitimacy of the March 16, 2016 EAC decision is not before me in this application and, in any event, has already been dealt with by Prothonotary Lafrenière when he dismissed the 888 Application. They also argue that the February Election which brought the FCC to power was no more valid than the May Election which brought the MCC to power, and that the validity of either election is not at issue. The May Election was not challenged, so that MCFN are stuck with the result.
[24] In my view, these assertions by MCC are untenable. There was no challenge to, or appeal of, the February Election, and the March 16, 2016 EAC decision that purported to void that election was a complete fraud and a non-event legally. MCC’s counsel has very capably led the Court through the Election Law and the facts in this application to demonstrate that the EC Respondents are not a legitimately appointed election committee and cannot call an election, but he has also meticulously avoided conducting the same exercise with regard to the EAC, and its March 16, 2016 decision, which is the root of the problems in this dispute. I understand why he has done this: the evidence is conclusive that this was not a decision of a legitimate EAC and its creation and use were a fraud. The MCC seek to establish legitimacy in this case, not through compliance with the Election Law, but through the use of procedural impediments to the
T-1442-16 application. In effect, the MCC are saying that, even if the March 16, 2016 EAC decision is a fraud, that’s too bad because the May Election was not challenged in time and its legitimacy cannot be questioned now. In my view, these assertions are not tenable. Political legitimacy under the MCFN Election Law cannot be obtained by the mere effluxion of time in a law suit. And the issue of legitimacy and standing in this application cannot be avoided, because it is firmly and rightly raised and the Court must deal with it. In the application and motions before me, the MCC take the position that the merits of the dispute are not at issue. What this means, in reality, is that it doesn’t matter to them what the MCFN Election Law says about the way Chiefs and Councillors are either elected or removed. This means that the will of the MCFN electorate is not relevant because MCC are content to achieve power as a result of a procedural technicality in this Court. FCC were willing to resign their positions and put the issue to the electorate in a new election, but MCC refused to do this. MCC do not wish to face their own electorate and are content to hang on to power as a consequence of a legal technicality. This is a strange and disquieting position to take when there is no provision under their own Election Law that allows power to be achieved in this way, and when legitimate power should only be entrusted to those who have been elected in a fair and duly called election that allows the MCFN members to make their preferences known. If the political culture at MCFN is allowed to be this disrespectful and neglectful of the will of the people, it will inevitably result in further chaos. MCC have the same evidence as I have concerning the March 16, 2016 EAC decision and they must know that it is not valid and that the FCC were never legitimately removed from office and the May Election was never legitimately called. They have not sought to support the March 16, 2016 EAC decision before me in their motion to strike that requires them to put their best foot forward. They claim power on the basis of a legal technicality, not the will of their own people. As might be expected, the jurisprudence of this Court does not allow this, and is firmly on the side of supporting legitimately elected leaders who have won the support of their own people in duly conducted elections. In fact, the Court has dealt with similar situations before.
[25] In Lac des Mille Lacs First Nation v Chapman, [1998] FCJ No 752 [Lac des Mille Lacs], two separate groups claimed to be Chief and Council of the first nation. The first Chief and Council decided that the election code under which they had been elected did not properly reflect band custom and decided to call a referendum to ratify a new draft code. However, before the referendum was held, some members of the band organized an election at which a second Chief and Council were elected. The second election was boycotted by the first Chief and Council. In the second election, Mr. Sawdo was elected as Chief and he and his Council went about building support for themselves as the legitimate Chief and Council of the band. A new election code was then allegedly adopted by referendum and a third Chief and Council were elected. Inevitably, the usual political and administrative chaos ensued and the Court was asked to intervene to determine who held legitimate power. Mr. Sawdo and his Councillors sought a declaration from the Court that they were the legitimate Chief and Council.
[26] It was clear on the facts that the first Council were purporting to hold office without legitimate authority, but they could not be removed from office by Mr. Sawdo and his Councillors as a result of a second election. Justice Cullen provided general guidance, much of which is applicable to the case before me:
15 The applicant seeks a declaration that he and his Councillors (collectively constituting Council No.2) are the true Council of the First Nation. This therefore must be the first issue addressed by examining the legitimacy of the election by which they were purportedly put into power.
16 Mr. Sawdo and Council No.2 were elected in 1996. The evidence indicates that it was Mr. Sawdo himself, with the help of other unidentified band members, who arranged for, called and administered the 1996 election. The affidavit of Mr. Sawdo states at paragraph 18 that Hereditary Chief and elder Robert Sandy Patrick Sawdo and Pam Sawdo, the applicant’s father and sister respectively, had verbal confirmation from Mr. Green, District Manager, Western District, Ontario Region, DIAND, that they could hold the election. However, as the first affidavit of Mr. Brent Lepage clearly states at paragraph 8, it is highly unlikely that such confirmation did come from Mr. Green because it was not within the jurisdiction or mandate of DIAND to approve the calling of an election. As the First Nation was to select its leaders according to band custom, the role of the Department was one of recognition only. Additionally, it was incumbent on counsel for the applicant to provide the court with the affidavit of either or both Mr. Patrick Sawdo or Ms Pam Sawdo relating what exactly had been said to them. As this evidence was not provided, and considering the contrary affidavit evidence from DIAND, I disregard this purported “affirmation” as any justification for the election. However, in the end this is of little relevance because, even assuming Mr. Green had supported the election, such support would have had no legal effect.
17 Mr. Sawdo, it is not disputed, was and is a band member. However, at the time Mr. Sawdo purportedly called the election in 1996 there was already a Council in place which was holding itself out as continuing in office. There is no evidence which indicates that attempts were made to convince Council No. 1 to step down and/or call an election prior to the election called by Mr. Sawdo. There is evidence however that DIAND offered to provide mediation to the parties in order to resolve the dispute but that neither party would participate without their lawyers and that the parties further wished DIAND to cover the legal fees. This was not acceptable to DIAND however. (See the first affidavit of Mr. Lepage, at paragraph 6(d))
18 The proper course which should have been followed by Mr. Sawdo is to have sought a writ of quo warranto from this court. Heald J. canvassed the law of quo warranto in the context of disputes relating to the proper Council of a First Nation in Bone v. Sioux Valley Indian Band No. 290 (1996), 107 F.T.R. 133 (Fed. T.D.). In Bone an appeal had been taken to the Appeal Board pursuant to the Band Election Code on the grounds that the elected Chief was not eligible to stand for election as he did not meet the residency requirement of the Election Code. The Appeal Board ordered that a new election be held. However, under the Band Regulations, only the Chief and Council could call an election, which they refused to do on the advice of the elders of the First Nation. The Chief was the respondent in the case and he refused to step down. Heald J. held that the court could issue a writ of quo warranto if the court was satisfied that the individual against whom the writ is issued has no legal basis for holding the position in question. At 151 Heald J. cited Teitelbaum J. in Jock v. R., [1991] 2 F.C. 355 (Fed. T.D.) wherein Teitelbaum J. writes:
According to de Smith’s Judicial Review of Administrative Action (4th Ed. by J.M. Evans, 1980), the old substantive law rules for quo warranto, with only slight modifications, still apply, as listed below (at pp. 463-464):
1. The office must be one of a public nature.
2. The holder must have already exercised the office; a mere claim to exercise it is not enough.
3. The office must have been created by the Crown, by a Royal Charter, or by an Act of Parliament.
4. The office must not be that of a deputy or servant who can be dismissed at will.
5. A plaintiff will be barred from a remedy if the plaintiff [sic] has been guilty of acquiescence in the usurpation of office or undue delay.
6. The plaintiff must have a genuine interest in the proceedings. Nowadays probably any member of the public will have sufficient interest, provided that he has no private interest to serve
There were other criteria cited by Heald J. which need not be discussed here as this is in fact not a motion for a writ of quo warranto.
19 Counsel for the applicant submits however that the 1996 election was proper and valid because:
1. it followed the same procedure for selection as was used in 1990 and 1992; and
2. that, once the 93-001 Code had been withdrawn, Council No. 1 no longer had any mandate or power and therefore there was no other Council in place.
20 In my view this second argument fails on the above-mentioned fact that, if it was the case that Council No. 1 was purporting to continue to act without authority, a writ of quo warranto should have been pursued and the lack of authority with respect to Council No. 1 did not thereby confer any authority on the applicant.
21 The proper course in the situation as described above would have been to seek a writ of quo warranto on the basis that: the office of Chief is public; there is no dispute that Mr. Chapman has exercised the office; as found by Heald J. in Bone, even an office holder elected by Band Custom satisfies the third requirement; the Chief cannot be dismissed at will; and, Mr. Sawdo has a genuine interest in the proceedings. Counsel for the respondent argued that the applicant was guilty of delay and had in fact acquiesced in the continuation of Mr. Chapman as Chief. This point, however, need not be decided for purposes here as no party has requested that the court issue a writ of quo warranto. However, I am satisfied that Mr. Sawdo should have pursued this course of action. There is much to recommend this course of action. First, it sends a clear message that the members of the First Nation will not abide a Council which overstays its term of office. Second, and most importantly, such a course of action avoids situations such as the one in this case. By seeking a writ of quo warranto as the first step, there is never any ambiguity as to who actually speaks on behalf of the members of the First Nation. Failing to do so, Mr. Sawdo has not demonstrated to the court that he had the authority to hold an election in the face of a different Council already holding office which did not participate in the 1996 election. In my view, the burden was his to establish such authority. Because Mr. Sawdo has not demonstrated that he had the proper authority, the court is unable to declare that the 1996 election was valid and therefore unable to give Mr. Sawdo the declaration he seeks.
22 With respect to the first argument, viz. that the procedure alone validates the election, I point out that the lack of authority to institute the proceedings in the first place is fatal. Furthermore, the paragraph from Mr. Sawdo’s affidavit which describes the manner in which the election was announced is insufficient. The applicant fails to name where and when these advertisements were placed. The only copy of a purported advertisement with respect to the 1996 election appears in the Record of the respondent and it fails to state the time and place of the election. Even if the applicant had submitted sufficient evidence with respect to the advertising of this meeting and election, it does not cure the above noted defects. Thus, the failure of proceeding with a writ of quo warranto is fatal to the applicant.
23 This leaves me to determine whether the respondents are validly in office. I pause here to discuss the court’s jurisdiction to pronounce on the validity of the respondents holding office in light of counsel for the applicant’s contention that, as no cross-motion was brought by the respondents, it was not within the jurisdiction of the court to make any findings with respect to the validity of Council No. 1 or its successor Council.
24 In the Originating Notice of Motion dated September 23, 1997, paragraph 9 asks for:
Such further and other relief as this Honourable Court may deem fair and just in the circumstances
In my view, in the interests of resolving all of the issues which these parties dispute, it is incumbent on this court to make factual findings and to render “further and other relief” which is “fair and just in the circumstances”.
25 When elected in 1992, Council No. 1 had a mandate for two years. Subsequently to their election, Council No. 1 adopted Electoral Code #93-001 which extended their term of office to four years. However, this Code was revoked by Resolution of Council on January 29, 1995. Thus, the Council had overstayed its mandate by almost a year, as the only Code which had not been revoked was the original Code by which they had been elected. Thus, the situation in 1995 was that Mr. Chapman and his Councillors were holding office without legitimate authority. However, Council No. 1 continued to conduct the business of the First Nation.
26 As I stated earlier, at this point, or any point subsequent, Council No. 1 could only be removed from office by voluntarily stepping down, by calling an election or by someone seeking a writ of quo warranto against them. None of these events in fact occurred.
[27] In Lac des Mille Lacs, the first Council had clearly exceeded the period of its mandate, yet it could only be removed from office by voluntarily stepping down, by calling an election or by someone seeking a writ of quo warranto against them. It could not be removed by the second election. In the case before me, there is no doubt that the FCC was still the legitimate Chief and Council of MCFN when the May Election was held and they boycotted that election and refused to step down. In other words, the FCC have never been removed from office and they are still the legitimate Chief and Council of MCFN. The MCC attempt to claim legitimacy by the use of the May Election, and now before me with technical legal arguments centering on the effluxion of the 30-day limit and the dismissal of the 888 Application by the Court, but these arguments are untenable.
[28] The reason for the process outlined by Justice Cullen is obvious. It is all too easy for competing groups excluded from power in one election to persuade band members (many of whom will be their own supporters) that the Chief and Council elected are not legitimate, and to persuade someone to call a new election. And, as the present case demonstrates, allowing this to occur creates political and social chaos. As Christopher Colomb says in his affidavit for this application at para 25:
The improper calling of an election creates many issues for MCFN in dealing with the responsible government authorities, professional advisors and other third parties, and in particular financial institutions.
Apparently, Mr. Colomb believes that advice should apply to others but not himself and his purported Councillors.
[29] Justice Rennie made the principal issue before the Court very forcefully in Poker v Mushuau Innu First Nation, 2012 FC 1 [Poker]:
[30] The Court makes no findings in regard to this later allegation. In any event, regardless of which individual or individuals may have cause or contributed to the shortcomings in the process, the paramount consideration in considering w