McKenzie v. Mikisew Cree First Nation

McKenzie v. Mikisew Cree First Nation
Court (s) Database
Federal Court Decisions
Date
2020-12-23
Neutral citation
2020 FC 1184
File numbers
T-66-19
Decision Content
Date: 20201223
Docket: T-66-19
Citation: 2020 FC 1184
Ottawa, Ontario, December 23, 2020
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
SHERRI MCKENZIE, DARREN MERCREDI, AND RUBI SHIRLEY
Applicants
and
MIKISEW CREE FIRST NATION CHIEF AND COUNCIL ARCHIE WAQUAN, RAYMOND RANDY MARTEN, CALVIN WAQUAN, AND SALLY JOAN WHITEKNIFE
Respondents
JUDGMENT AND REASONS
[1] This is the judicial review of a Mikisew Cree First Nation [MCFN] Band Council Resolution [BCR], dated December 11, 2018, suspending the Applicants, Sherri McKenzie, Darren Mercredi and Rubi Shirley, as MCFN Band Councillors.
Factual Background
[2] The MCFN is an Indian Band under the Indian Act, RSC 1985 c.I-5. In 1996, MCFN adopted the Mikisew Cree First Nation Customary Election Regulations [Election Regulations]. Pursuant to the Election Regulations, MCFN is governed by a Council consisting of one Chief and six Councillors. A “Quorum of Council” is defined as at least four members of Council, one of whom must be the Chief or Sub-Chief (ss 3.1, 2.0(s)).
[3] In the election held on June 20, 2017, the Applicants, together with the Respondents Sally Whiteknife, Randy Marten and Calvin Waquan were elected as Councillors, and Archie Waquan was elected as Chief of MCFN.
[4] Not long after the election, conflict between the Applicants and the remainder Chief and Council arose.
[5] At a November 27, 2018 meeting of Chief and Council a “Petition for Removal of Councillor Sally Whiteknife and Councillor Randy Marten from Office” [Petition], signed by 100 MCFN members was presented. The Petition alleged that Sally Whiteknife and Randy Marten were not resident on MCFN Reserve land during their term as councillors, as required by s 14.1 of the Election Regulations and, pursuant to s 15.1(b)(v), that this was grounds for their removal from office. The Petition noted that, pursuant to s 15.3 of the Election Regulations, upon receipt of such a petition Council was required to convene a special meeting to consider removal.
[6] According to the evidence of the Applicants, specifically the Affidavit of Rubi Shirley, affirmed on January 9, 2019 [Shirley Affidavit], a special meeting of MCFN Chief and Council was held on November 28, 2018 and a motion was made and passed to suspend Councillors Whiteknife and Marten pending an investigation. However, I note that the record before me does not contain a Band Council Resolution supporting this statement. Rather, attached as Exhibit 3 of the Shirley Affidavit is an “Affidavit of Facts – Minutes & Statement of Events on November 29, 2018” which states that the Chief accepted a motion by Councillor Mercredi to suspend Councillors Whiteknife and Marten and that the Chief and the Applicants voted in favour of this. This Affidavit of Facts is signed by the three Councillor Applicants, an Elder and a Band Member, but it is not signed by the Chief. It appears that shortly thereafter the Applicants provided letters of suspension, dated November 28, 2018, to Councillors Whiteknife and Marten advising them that they were immediately suspended pending the outcome of an investigation.
[7] Conversely, evidence submitted by the Respondents indicates that on November 28, 2018, MCFN Chief and Council held a regularly scheduled meeting with the MCFN Government and Industry Relations Department to discuss its quarterly report. This was not a Special Meeting convened with respect to the Petition. Following the meeting, the MCFN Chief Executive Officer [CEO] Doreen Cardinal was advised of the Petition, the relevant Election Regulations provisions (s 15) were reviewed and the CEO was accordingly instructed to obtain a legal opinion with respect to the validity of the Petition. According to the Affidavit of Doreen Cardinal dated January 10, 2019 [Cardinal Affidavit] a Band Council Resolution, dated November 28, 2018, and signed by Chief Waquan and Councillors Whiteknife, Marten and Calvin Waquan was issued in that regard. According to the Respondents, no band council resolution was passed suspending Councillors Whiteknife and Marten. The requested legal opinion was provided on December 3, 2018 by Rath & Company.
[8] In the meantime, various emails were exchanged between November 29 and December 5, 2018. Chief Waquan sent emails to the Councillors on November 29 and December 4, 2018 stating that Councillors Whiteknife and Marten had not been suspended and that a legal opinion was being sought, pursuant to s 15.4 of the Elections Regulations, on an urgent basis. He asked that letters not be sent on behalf of the MCFN and indicated that all letters on behalf of the First Nation required his signature until the matter was resolved. The Applicants replied on December 4, 2018 asserting, among other things, that at a Special Meeting held on November 28, 2018 a decision was made by a majority of Chief and Council to suspend the two Councillors until a legal opinion was received and that the Chief had voted in favour of this.
[9] On December 6, 2018, Rubi Shirley also sent an email to Chief and Council requesting that a Special Meeting be convened that afternoon. Both Chief Waquan and Councillor Calvin Waquan responded to Ms. Shirley’s email, noting that she had not given enough notice for a special meeting and indicating that Chief Waquan was away at meetings in Ottawa and no Chief and Council meetings would be held until the legal opinion was received. No meeting was held on December 6th.
[10] On December 10th, Rubi Shirley sent an email to Chief and Council requesting that a Special Meeting be convened that day to discuss a couple of “important items”. Councillor Calvin Waquan replied to Ms. Shirley’s email noting that a regularly scheduled meeting was scheduled for, and would be held, the next day, December 11, 2018.
[11] Regardless, Councillors Shirley, Mercredi and McKenzie met on December 10th at the MCFN Band Office and purported to pass a motion terminating Doreen Cardinal’s employment as CEO. Mr. Mercredi then gave Doreen Cardinal a termination letter, dated December 10th. This letter is on MCFN letterhead and is signed by each of the Applicants as Councillors and also includes the name of Chief Archie Waquan – without his signature. The Cardinal Affidavit states that Ms. Cardinal immediately contacted Chief Waquan who told her that she had not been terminated and was to report for work the following day.
[12] Things did not improve the next day.
[13] The scheduled Chief and Council meeting was held on the morning of December 11, 2018 at the Band Office and all Councillors and the Chief attended. This meeting was disrupted, with some Band Members refusing to leave the boardroom, and the meeting disbursed. The meeting was either re-convened, or a second meeting was held, that afternoon at the home of Chief Waquan. The afternoon meeting was attended by Chief Waquan and Councillors Whiteknife, Marten and Calvin Waquan. At that meeting, Band Council Resolution BCR 00461-702-2018-2019-037 was passed [Suspension BCR]. The Suspension BCR states that the Applicants had engaged in conduct contrary to the MCFN Election Regulations, Appendix E, Ethical Guidelines for Conduct of Council by interfering with the day-to-day operations of MCFN by purporting to terminate members of senior staff, by engaging in political activity designed to undermine other members of Chief and Council, by making false allegations with regard to other members of Chief and Council, by acting without authority to purport to call “Band General Meetings” for the express purpose of calling the governance of the MCFN into disrepute. The Suspension BCR suspended the Applicants from Council until they acknowledged their unethical conduct and the harm they caused to the MCFN through their behaviour and provided a letter of apology in the form attached.
[14] The next day, December 12, 2018, there was further disruption at the Band Office. MCFN sought and obtained a Preliminary Ex Parte Interim Injunction Order, issued by the Court of Queen’s Bench of Alberta, on December 12, 2018 that restrained and prohibited defendants named therein, which included Rubi Shirley and Sherri McKenzie, from interfering with, disturbing or obstructing the ongoing administration and business operations of MCFN. On January 3, 2019 the defendants to that action brought an application to set aside the injunction order which was granted on January 11, 2019.
[15] The Applicants filed their application for judicial review on January 9, 2019 challenging the Suspension BCR.
[16] At the hearing, in response to my inquiry as to Mr. Mercredi’s current involvement in this application, counsel for Ms. McKenzie and Ms. Shirley advised that he represented only those Applicants and was not aware of the status of Mr. Mercredi. Subsequent review of the Court’s file indicates that by letter to the Court dated February 27, 2019 Mr. Mercredi advised that he wished to remove himself from file no T-66-19, effective February 19, 2019. Former counsel for all of the Applicants requested to be and was eventually removed as counsel of record. Current counsel is counsel of record only for Ms. McKenzie and Ms. Shirley. Formal steps to remove Mr. Mercredi as an Applicant and to revise the style of cause were not taken but Mr. Mercredi did not further participate in the application. The record before me indicates that Mr. Mercredi signed the Acknowledgement of Unethical Conduct and Apology and was reinstated to his office as a Councillor on February 19, 2019. There is no indication that Mr. Mercredi continues to seek any relief by way of this Application.
[17] At the hearing counsel for Ms. McKenzie and Ms. Shirley advised that subsequent to the application for judicial review being filed, a new election was held on August 27, 2020. New Chief and Council were sworn in on September 12, 2020. Ms. McKenzie was re-elected. Ms. Shirley also ran but was not re-elected. As a result, counsel for those Applicants advised that the relief sought by them no longer includes being restored to office. Those Applicants seek an order quashing the Suspension BCR and a declaration that they ought to have been restored to office and that they are to be paid their wages from the date of their suspension to the date that new council took office.
Decision under review
[18] The Suspension BCR states, in part:
WHEREAS: The Mikisew Cree First Nation Chief and Council have been elected to represent and empowered to act on behalf of the constituents of the Mikisew Cree First Nation;
WHEREAS: The Powers and Authorities of the Council are exercised as provided for under the Indians Act; and
WHEREAS: The liabilities of Council are limited to those specifically provided for under the Indian Act; and
WHEREAS: This Council has met duly convened meeting on December 11, 2018; and
WHEREAS: Rubi Shirley, Darren Mercredi, and Sherri McKenzie have engaged in conduct contrary to the MIKISEW CREE FIRST NATION CUSTOMARY ELECTION REGULATIONS: APPENDIX E ETHICAL GUIDELINES FOR CONDUCT OF COUNCIL by interfering in the day to day operations of Mikisew Cree First nation by purporting to terminate members of senior staff, by engaging in political activity designed to undermine other members of Chief and Council, by making false allegations with regard to other members of Chief and Council, by acting without authority to purport to call “Band General Meetings” for the express purpose of calling the governance of the Mikisew First Nations into disrepute;
IT IS HEREBY RESOLVED:
That Rubi Shirley, Darren Mercredi, and Sherri McKenzie are hereby suspended from Council of the Mikisew Cree First Nations until such time as they have acknowledged their unethical conduct and acknowledged the harm that they have caused to the Mikisew Cree First Nation, its members, and its Chief and Council through their prohibited behaviour, and apologised in writing for this conduct in the form attached to the Band Council Resolution;
THEREFORE LET IT BE FURTHER RESOLVED:
That the payment of salaries, honoraria, and expenses for Rubi Shirley, Darren Mercredi, and Sherri McKenzie are hereby suspended.
THEREFORE LET IT FURTHER BE RESOLVED:
That Jeff Rath will be retained to deal with any issues or claims resulting from any petition or suspension from Rubi Shirley, Darren Mercredi, and Sherri McKenzie or affiliated persons.
The quorum for this First Nation consists of four (4) Council Members.
[19] All Chief and Council members’ names appear on the Suspension BCR but it bears only the signatures of Chief Waquan and Councillors Whiteknife, Marten and Calvin Waquan.
[20] The letter referenced in the Suspension BCR is also found in the record. This states:
Dear Chief and Council:
Re: Acknowledgement of Unethical Conduct and Apology
This letter is written to acknowledge that I, __________________, acknowledge that I have engaged in conduct contrary to the EHTICAL GUIDELINES OF CONDUCT FOR COUNCIL.
I have inappropriately undermined the day to day functioning of the Mikisew Cree First Nation’s government by making false allegations about fellow members of the Chief and Council, I have inappropriately interfered with the functioning of the Mikisew Cree First Nation government by attempting terminate (sic) a member of the Mikisew Cree First Nation senior administrative staff, I have engaged in political conduct aimed directly at fellow members of the Chief and Council for the express purpose of attempting to take over the functions of the entire Chief and Council for my own personal gains and purposes and have, without authority, called Band General Meetings without the authority of Chief and Council for the purpose of engaging in personal attacks on the Chief and my fellow Councillors.
I acknowledge the harm that this has caused to the Mikisew Cree First nation and its membership. I understand that my actions directly contravened the Ethical Guidelines for Conduct of Council. I apologize to the Members of the Mikisew Cree First Nation and the Chief and Council for my unethical conduct and I promise that I will not engage in such conduct ever again while sitting as a member of the Mikisew Cree First Nation Chief and Council.
Yours very truly
________________________________
Relevant Legislation
[21] The relevant provisions of the Mikisew Cree First Nation Customary Election Regulations are as follows:
PREAMBLE
WHEREAS:
…..
E. The Mikisew Cree First Nation now desires that the customs and traditions of the nation in relation to the Election of the Chief and Councillors be incorporated and recorded in written customary election regulations and procedures; and
….
2.0 DEFINITIONS
Unless other wise expressly stated, in this regulation:
i) “Senate of Elders” means the Elders appointed by the Council and recognized by the membership of the First Nation.
s) “Quorum of Council” means at least four members of Council, one of whom must be the Chief or Sub-Chief.
3.0 COMPOSITON AND TERM OF OFFICE OF COUNCIL
3.1 Composition
The Nation will be governed by a Council consisting of one (1) Chief and six (6) Councillors.
15.0 REMOVAL OF CHIEF OR COUNCILLORS FROM OFFICE
15.1 Grounds for removal from office:
The Chief or any Councillor may be removed from office on the following grounds:
a) …..
b) While in office, the chief or any Councillor
(i) who engages in drunk, disorderly, and irresponsible conduct at Council meeting, community meetings or in other forums or function which interferes with the conduct of business or brings the reputation of the Nation and/or the Council into disrepute;
…..
(v) who fail to remain resident on Mikisew Cree First Nation Reserves or Fort Chipewyan for the duration of their term of office;
(ix) who refuse to sign or breach the Code of Ethics for Chief and Councillors set out in Schedule “E”.
15.3 Petition for Removal
Upon receipt of a Petition signed by at least one hundred (100) Electors stating the grounds 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 Resolution for Removal
Upon consideration of a legal opinion as to whether the alleged grounds for removal of a Chief or Councillor fall within the provision of S15.1 or S 15.2 [sic], the Council may then by Resolution must state the grounds for removal and the effected date of the removal of the person from office.
Schedule “B”
POWERS AND AUTHORITY OF THE COUNCIL
The powers and authority of the Chief and Council include:
1. Approving and implementing policies concerning the management and administration of First Nation affairs including, but not limited to, finance and administration, housing, lands, education. Social programs, economic development and related issues.
2. Responsibly managing and protecting the First Nation’s assets.
3. Formulating, reviewing, approving and implementing by-laws as authorized under the Indian Act and adopting and approving legislation pursuant to the authority granted Aboriginal governments in the Constitution Act, 1982 (as amended).
4. Negotiating, finalizing, and executing financial and other agreements between the First Nation and Governments of Canada and/or Alberta.
5. Formulating, reviewing, and approving amendments to the Membership Code, Customary Election Regulations, By-Laws, legislation, or other acts or policies of the First Nation with approval of, and in consultation with, the membership in regards to any such amendments.
6. Voting as deemed proxy holder for the members of the Mikisew Cree First Nation in relation to all shares held by the membership of the First Nation in any First Nation Corporation, Societies, or Non-profit corporate organizations.
7. Establishing committees, hiring staff, retraining advisors, and responsibility for any other managerial or administrative decisions necessary and incidental to the foregoing.
8. Notwithstanding the foregoing, the Council may not exceed the budget approved by the majority of eligible Electors at the Annual General Meeting of the First Nation unless the excess is approved in advance at a general or social meeting of the membership of the First Nation.
9. Other actions and decisions as deemed necessary from time to time for the proper governance of the Mikisew Cree First Nation
Schedule “C”
ROLE AND FUNCTION OF THE SENATE OF ELDERS
The role and functions of the Senate of Elders include:
1. Providing advice and recommendations to the Council on issues of concern to the First Nation.
2. Acting as the Election Appeal Committee for the purposes of these Regulations
Schedule “E”
ETHICAL GUIDELINES OF CONDUCT FOR MEMBERS OF COUNCIL
The proper operation of democratic government of the Mikisew Cree First Nation requires that:
(i) Elected Officials be independent, impartial, and duly responsible to the people of the Mikisew Cree First Nation;
(ii) By-laws, policy, and decisions be made through the proper channels of Mikisew Cree First Nation government structure;
(iii) The People of the Mikisew Cree First Nation have confidence in the integrity of its government.
According [sic], certain ethical principles and guidelines must govern the conduct of member of Council in order that they maintain the highest standards in public office and faithfully discharge the duties of office.
Members of Council shall:
1. Govern their conduct in accordance with the obligations and regulations governing the conduct of the Council of the Mikisew Cree First Nation; …
4. Preserve the integrity, reputation, and impartiality of Council by conducting themselves at all times in a matter [sic] that will no dishonor [sic] their office or bring the reputation of the Council into disrepute;
5. Not engage in any unethical activities not covered or specifically prohibited by these ethical guidelines of conduct or by any law;
…..
As a Member of this Council, I agree to uphold the spirt and terms of these guidelines and to govern my actions accordingly.
Issues
[22] In my view, the issues identified by the parties can be framed as follows:
Preliminary Issue: Is this application for judicial review premature and/or moot?
Issue 1: Did Chief and Council have the authority to suspend the Applicants?
Issue 2: If so, was the process by which the Applicants were suspended procedurally fair?
Standard of review
[23] The Applicants made no written submissions regarding the standard of review. However, when appearing before me current counsel submitted that the reasonableness standard applies to the question of whether Chief and Council had the authority to suspend the Applicants and that the correctness standard applies to issues of procedural fairness.
[24] The Respondents submit that the decision to suspend the Applicants falls within the standard of reasonableness as set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]) and, throughout their submissions, emphasise that deference is owed by this Court to the decision maker on a reasonableness review. The Respondents made no submissions regarding the standard of review for procedural fairness in their written submissions.
[25] The Supreme Court of Canada in Vavilov held that the standard of reasonableness presumptively applies whenever a court reviews an administrative decision (Vavilov at paras 16, 23, 25). That presumption may be rebutted in two circumstances. The first is where the legislature has prescribed the standard of review or has provided a statutory appeal mechanism thereby signalling the legislature’s intent that appellate standards should apply (Vavilov at paras 17, 33). The second circumstance is where the rule of law requires the application of the correctness standard. This will be the case for certain categories of questions, namely, constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies (Vavilov at paras 17, 53).
[26] In my view, the issue of whether the Chief and Council had the jurisdiction or authority to suspend the Applicants does not fall into any of the circumstances that the Supreme Court identified in Vavilov as requiring the application of the correctness standard. Indeed, the Supreme Court stated that it “would cease to recognize jurisdictional questions as a distinct category attracting correctness review” (at paras 65, 68).
[27] I also note that, prior to Vavilov, the Federal Court of Appeal held that questions involving the authority or jurisdiction of a First Nation chief and council to suspend a councillor are governed by the reasonableness standard (Fort McKay First Nation v. Orr, 2012 FCA 269 [Orr] at para 12). Post Vavilov, this Court has held that the Supreme Court’s decision in Vavilov does not change the application of reasonableness standard of review to a First Nation’s band council decision regarding its authority or jurisdiction to take challenged actions (Tourangeau v. Smith's Landing First Nation, 2020 FC 184 at para 25 [Tourangeau]).
[28] As the presumption has not been rebutted, the reasonableness standard applies to the issue of the authority or jurisdiction of the MCFN Chief and Council to suspend the Applicants as well as to the substantive review of that decision. The decision must be reviewed for intelligibility, justification, and transparency (Vavilov, para 15).
[29] Issues of procedural fairness are reviewed on the correctness standard (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Canada v Akisq’nuk First Nation, 2017 FCA 175 at para 19; Gadwa v Kehewin First Nation, 2016 FC 597 at para 19, aff’d 2017 FCA 203; Morin v. Enoch Cree First Nation, 2020 FC 696 at para 21; Tourangeau at para 26).
[30] On a correctness review, no deference is owed to the decision maker and the reviewing court determines if the duty of procedural fairness owed to the applicant was breached (Elson v Canada (Attorney General), 2019 FCA 27 at para 31; Connolly v Canada (National Revenue), 2019 FCA 161 at para 57).
Preliminary Issue: Is this application for judicial review premature and/or moot?
[31] In their written submissions, the Respondents argue that this application for judicial review is premature because Ms. McKenzie and Ms. Shirley have not exhausted all of the internal remedies available to them. Further, where an administrative appeal route exists, parties are barred from seeking judicial review (Danyluk v Ainsworth Technologies Inc, 2001 SCC 44) and courts will only interfere with ongoing administrative processes in exceptional circumstances (Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61 [C.B. Powell]).
[32] According to the Respondents, those Applicants have been offered numerous internal remedies to facilitate their return to Council, which they have not pursued. Specifically, they could have negotiated and signed the letter of Acknowledgement of Unethical Conduct and Apology attached to the Suspension BCR; they could have responded to offers of settlement; and, they failed to pursue their right of appeal through the Senate of Elders. The Respondents submit that Vavilov requires that deference be afforded to band governance to resolve internal disputes and that premature intervention by the Courts is counter to the spirit of reconciliation. In this case, a high level of deference should be afforded both because this is an internal conflict resolution process and because the suspensions were meant to promote dialogue. The only reason the suspensions continued is because those Applicants refused to avail themselves of the internal processes or to conduct themselves in a reasonable manner.
[33] In my view, the Respondents’ assertion that this application for judicial review is premature cannot succeed.
[34] The Supreme Court of Canada in Strickland v Canada (Attorney General), 2015 SCC 37 [Strickland] confirmed that judges of this Court have discretion in determining whether judicial review should be undertaken (paras 37-38). Further, that one of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative, such as a right of appeal found within the applicable appeal procedure or review process (at para 40-41). However, while an adequate alternative remedy is one ground for refusing judicial review, a number of considerations must be taken into account and balanced in making that determination:
[42] The cases identify a number of considerations relevant to deciding whether an alternative remedy or forum is adequate so as to justify a discretionary refusal to hear a judicial review application. These considerations include the convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources; and cost: Matsqui, at para. 37; C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332, at para. 31; Mullan, at pp. 430-31; Brown and Evans, at topics 3:2110 and 3:2330; Harelkin, at p. 588. In order for an alternative forum or remedy to be adequate, neither the process nor the remedy need be identical to those available on judicial review. As Brown and Evans put it, “in each context the reviewing court applies the same basic test: is the alternative remedy adequate in all the circumstances to address the applicant’s grievance?”
[35] Further, it is for courts to identify and balance the relevant factors in the context of a particular case. A court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances:
[43] In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type of balance of convenience analysis: Khosa, at para. 36; TeleZone, at para. 56. As Dickson C.J. put it on behalf of the Court: “Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicial review remedy should be exercised. It is for the courts to isolate and balance the factors which are relevant . . .” (Canada (Auditor General), at p. 96).
[44] This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme in issue: see, e.g., Matsqui, at paras. 41-46; Harelkin, at p. 595. David Mullan captured the breadth of the inquiry well:
While discretionary reasons for denial of relief are many, what most have in common is a concern for balancing the rights of affected individuals against the imperatives of the process under review. In particular, the courts focus on the question of whether the application for relief is appropriately respectful of the statutory framework within which that application is taken and the normal processes provided by that framework and the common law for challenging administrative action. Where the application is unnecessarily disruptive of normal processes . . . the courts will generally deny relief. [Emphasis added; p. 447.]
[45] The factors to be considered in exercising this discretion cannot be reduced to a checklist or a statement of general rules. All relevant factors, considered in the context of the particular case, should be taken into account.
[36] As stated by the Federal Court of Appeal in C.B. Powell, the jurisprudence has clearly established that the normal rule is that the parties can proceed to the court system only after all adequate remedial recourses “in the administrative process” have been exhausted (at para 30) and:
[31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
[37] It is significant to note at the outset of this analysis that the Respondents do not identify an existing statutory or other framework that provides the Applicants with, and governs, an alternative internal remedy which permits them to challenge or appeal the decision of a quorum of Chief and Council to suspend the Applicants as members of Council, by way of the Suspension BCR.
[38] The Respondents sole submission as to a right of appeal available to the Applicants is that “the Applicants have not pursued their right of appeal through the Senate of Elders”. However, the only reference to the Senate of Elders found in the record before me is contained in the Election Regulations, Schedule C. This states that the role and functions of the Senate of Elders include providing advice and recommendations to the Council on issues of concern to the First Nation and acting as the Election Appeal Committee for the purposes of the Election Regulations.
[39] That the Applicants were duly elected as Councillors by the members of the MCFN has not been challenged and is not at issue. Accordingly, this is not a matter where the Senate of Elders may, pursuant to the Election Regulations, resolve the dispute in its role as election appeal committee.
[40] Further, the Election Regulations make provision for the removal of Chief or Councillors from office. The Regulations set out the grounds for removal (s 15.1), the requirement for a petition for removal (s 15.3) and, a band council resolution for removal after Council have obtained a legal opinion (s 15.4). This process does not include a right of appeal, to the Senate of Elders or otherwise, of a band council resolution removing or suspending a councillor from office.
[41] Thus, the only identifiable administrative review process in the Election Regulations, being to the Senate of Elders as an Election Appeal Committee, does not include a right of appeal from a band council resolution removing a councillor from office. The Election Regulations are silent as to appealing the suspension of elected councillors.
[42] The Respondents make no substantive submissions and offer no evidence in support of the Senate of Elders’ inherent authority to hear appeals of other matters. I would also note that the Respondents have not tendered any evidence that they have sought the recommendations and advice of the Senate of Elders with respect to the Suspension BCR.
[43] In my view, the Respondents have not established that the Applicants could appeal the Respondents’ authority and decision to suspend them, or the procedural fairness and reasonableness of the Suspension BCR, to the Senate of Elders. Therefore, the Respondents have not established that such an appeal serves as an adequate alternative remedy that the Applicants have failed to exhaust.
[44] Nor does the doctrine of exhaustion apply where the alternative administrative remedy is ineffective or does not allow the issues to be properly raised. As the FCA stated in C.B. Powell at para 33:
Exceptional circumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunction against administrative decision-makers before or during their proceedings. Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted
[emphasis added]
[45] In Whalen v Fort McMurray No. 468 First Nation, 2019 FC 732 [Whalen] a councillor challenged the decision by the Council of the Fort McMurray No. 468 First Nation to suspend her. The First Nation submitted, among other things, that the application was premature. Justice Grammond rejected the prematurity argument, for the reasons he set out, including:
[25] Third, Councillor Whalen takes the position that the Council was biased and did not have the power to make the impugned decision. While raising issues of jurisdiction and bias does not lead to an automatic exception to the prematurity rule, in this case I am convinced that the process that has been deployed is sufficiently problematic to warrant early review by this Court. Moreover, the jurisprudence on prematurity appears to have developed mainly in the context of adjudicative decision-making, where the process and the jurisdiction of the bodies involved are defined by legislation. In the present case, however, there is no legislation providing for the suspension of councillors. The decision was not made by an independent adjudicative body, such as a First Nation’s judicial council (as in Edzerza), but by Councillor Whalen’s political adversaries.
…
[27] Fourth, giving effect to the prematurity objection in this case would be tantamount to insulating from review a category of decisions that have the potential to undermine the good governance of First Nations. It is in the public interest to rule on the powers of First Nations councils in similar circumstances.
[46] Similarly, here the Election Regulations do not provide for the suspension of a councillor and, as will be discussed below, the process by which the decision to do so was reached was deeply flawed.
[47] As to the Respondents’ submission that the Applicants were afforded the “internal remedy” of negotiating and signing a letter of acknowledgment and apology and therefore that “remedial recourse in the administrative process have not been exhausted”, this cannot succeed. Signing an acknowledgement and apology is not an administrative process found in the Election Regulations, which as noted above, do not speak to appealing councillor suspensions. It appears that this “process” is a construct of the Respondents. More significantly, the Acknowledgment of Unethical Conduct and Apology letter is not an avenue for dispute resolution. The form of the letter was dictated to the Applicants by the Suspension BCR, to which it was attached. Regardless of any potential “negotiation” of its terms, it essentially requires that the Applicants acknowledge the Respondents’ authority to suspend them, the allegations of misconduct and harm asserted in the letter, and therefore the validity of their own suspensions. This is a “take it or leave it” demand and does not resolve the underlying issue, which is the authority of Chief and Council to suspend the Councillors and the validity of that action. In my view, this purported internal remedy is not a “process allows the issues to be raised and an effective remedy to be granted” (CB Powell at para 33).
[48] Similarly, the Respondents’ characterization of the Applicants’ non-response to settlement offers, said to have been extended to them, as an internal administrative process that has not been exhausted lacks merit. The potential of settling a dispute as between the parties is not a right of appeal. There is no administrative process identified in which internal settlement efforts are a required step.
[49] In summary, here there is no administrative process for the Applicants to appeal the authority and validity of the Suspension BCR. While concerns about procedural fairness and the existence of a dispute as to the jurisdiction of a decision maker generally do not alone amount to an exceptional circumstance permitting a party to commence a judicial review before the administrative process has been completed, this is so only if a process exists that allows the issues to be raised and an effective remedy granted (C.B. Powell at para 33 and 39). The Election Regulations do not provide for an appeal, by way of the Senate of Elders or otherwise. Further, the purported internal remedies of signing the Acknowledgment of Unethical Conduct and Apology letter, or some negotiated version thereof, or the parties settling, do not amount to effective remedies if the Applicants are not willing to concede or agree to the Respondents’ terms. They also do not allow the Applicants to address the underlying issue of Chief and Council’s authority to suspend the Applicants.
[50] While negotiation and settlement are always preferable to proceeding to litigation, resolution by that means cannot be unilaterally imposed on the Applicants. In that regard, it is of note that the Suspension BCR is dated December 11, 2018. The Respondents assert that the suspensions were meant to “promote dialogue” and that “[T]he only reason that the suspensions continue is the Applicants refusal to avail themselves of internal processes or conducting themselves in a reasonable manner”. However, the reality of this situation is that two years have passed and the Appl