Chief Gayle Strikes With a Gun v. Piikani First Nation

Chief Gayle Strikes With a Gun v. Piikani First Nation
Court (s) Database
Federal Court Decisions
Date
2014-09-23
Neutral citation
2014 FC 908
File numbers
T-2224-12, T-262-13
Decision Content
Date: 20140923
Dockets: T-2224-12
T-262-13
Citation: 2014 FC 908
Ottawa, Ontario, September 23, 2014
PRESENT: The Honourable Madam Justice McVeigh
Docket: T-2224-12
BETWEEN:
CHIEF GAYLE STRIKES WITH A GUN
Applicant
and
PIIKANI FIRST NATION COUNCIL, COUNCILOR DOANE CROW SHOE, COUNCILOR FABIAN NORTH PEIGAN, COUNCILOR ANGELA GRIER, COUNCILOR WESLEY PROVOST, COUNCILOR WILLARD YELLOW FACE, COUNCILOR ANGELA GRIER, COUNCILOR ANDREW PROVOST JR, COUNCILOR CLAYTON SMALL LEGS, COUNCILOR KYLE DAVID GRIER, COUNCILOR REBECCA WEASEL TRAVELER, COUNCILOR MAURICE LITTLE WOLF, COUNCILOR ELOISE PROVOST, COUNCILOR CASEY SCOTT
Respondents
Docket: T-262-13
AND BETWEEN:
CHIEF GAYLE STRIKES WITH A GUN
Applicant
and
DOANE CROW SHOE, FABIAN NORTH PEIGAN, ANGELA GRIER, ANDREW PROVOST JR, CLAYTON SMALL LEGS, KYLE DAVID GRIER, SERENE WEASEL TRAVELLER, MAURICE LITTLE WOLF, ELOISE PROVOST, PURPORTING TO ACT AS COUNCIL OF THE PIIKANI NATION
Respondents
JUDGMENT AND REASONS
I. Preamble. 3
II. Glossary (alphabetically and definitions from the evidence) 5
III. Preliminary Issues. 10
A. Proper parties. 10
B. Decisions -Rule 302. 10
IV. Issues. 11
V. Relief Sought 12
VI. Factual Circumstances. 13
VII. Standard of Review.. 32
VIII. Analysis. 33
A. Did the Piikani Nation Removal Appeals Board have Jurisdiction?. 33
(1) Legislative Background- Piikani Election Bylaws, 2002 and Regulations. 36
B. Was the Piikani Nation Removal Appeals Board biased or was there a reasonable apprehension of bias? 38
C. Does Issue Estoppel Apply in this Application?. 44
D. Was the Piikani Nation Removal Appeals Board decision reasonable?. 45
E. Was it reasonable that the Chief’s legal costs and honoraria not be paid by the First Nation? 51
(1) Legal fees. 51
(2) Honoraria. 56
IX. Costs. 57
I. Preamble [1] Chief Gayle Strikes With A Gun is the Applicant and was elected Chief of the Piikani First Nation on January 5, 2011. She was removed as Chief of the Piikani First Nation on December 11, 2013 in a decision of the Piikani Nation Removal Appeals Board (“the Board”). Her term as Chief was to expire on January 4, 2015.
[2] In this decision I will refer to her as the Chief to avoid confusion as she is named both the Applicant and the Respondent in some of the matters before me.
[3] The Chief says that since September 2012, there have been three attempts to remove her as Chief of the Piikani First Nation. The Chief argues her conduct was such that she should not have been removed. Further, she argues that even if her conduct was enough to remove her that the Board was biased, unfair and had no jurisdiction as it was wrongly constituted.
[4] In the Notices of Application (T-2224-12 and T-262-13), the Chief sought judicial review of five decisions of Council that suspended her as Chief of the Piikani First Nation between September 2012 and May 2013.
[5] In the Amended Amended Notice of Application dated January 8, 2014, the Chief seeks judicial review of:
a) decisions of the Board dated November 20, 2013, and December 11, 2013. In those decisions the Board declared the Chief ineligible to hold office;
b) the November 14, 2013 decision of the Piikani First Nation Council by Band Council Resolution that refused payment of the Chief’s legal fees by the Piikani First Nation;
[6] The Respondents are Councillors of the Piikani First Nation who suspended the Chief and sent the matter to the hearing before the Board.
[7] The Respondents’ position is:
a. That the Board had jurisdiction under the Piikani Election Bylaw and Regulations to act;
b. That the Board was not biased or unfair and there was no reasonable apprehension of bias; and
c. That decisions made by the Piikani First Nation Council and the Board were reasonable.
[8] The parties were given considerable time by the Court to resolve this matter after the day-long hearing. The parties were urged to do so by the Court so that this proud Blackfoot nation could begin the healing process and practice piikanissini, however, they have indicated to the Court that they have not been able to resolve it, so I will render a decision.
[9] I find it regrettable the amount of money and judicial resources spent on the multitude of litigation surrounding these issues and more importantly the resulting toxic feelings amongst a communal people that will not heal in the near future because of this litigation. I am saddened when considering that the First Nation is experiencing financial difficulty already.
[10] Terms are spelled in this decision as they are in the parties materials and is the customary spelling.
II. Glossary (alphabetically and definitions from the evidence) [11] Bridget Kenna: Chief Financial Officer (CFO) and acting Chief Executive Officer (CEO) of the Piikani First Nation.
[12] Chief Gayle Strikes With A Gun (Chief): The Applicant and the first woman chief elected in the Piikani First Nation. Her common law partner is Larry Provost and her sister is Pam Wolf Tail. The Chief has a Bachelor of Education degree from the University of Lethbridge and a Master of Education from the University of British Columbia. The Chief was employed as:
• Assistant Superintendent for the Beaufort-Delta Education Council (2007-2011), in Inuvik, North Western Territories (NT);
• Teacher/Counsellor with the Mackenzie Mountain School (2004-2007), in Norman Wells, NT;
• Director of Education of Peigan Board of Education in Brocket (2002-2004), in Alberta;
• Principal of Chief T’Selehye School-in Fort Good Hope (2000-2002), in NT; and
• Principal and teaching positions in elementary schools after her graduation.
[13] Chief of Piikani First Nation: The Chief is in a position of high moral authority and influence but with little power. The role of Chief is to call, chair and preside over Council meetings and act as spokesperson for the First Nation. The Chief can be overruled by Council at any time and is only given a vote when there is a tie. The Chief can but does not always set the agenda for the meetings. Council has to approve the agenda and can add business to the agenda. The Chief recommends appointments of Councillors to committees, portfolios and to act as Chief in his or her absence and after discussion with Council, the recommendations are voted on.
[14] Fabian North Peigan (Mr. North Peigan): He is the Petitioner for removal of the Chief and named as a Respondent in these applications. Mr. North Peigan was first elected to Council in 1986 and is in his fifth non-consecutive term as Councillor with his term ending January 5, 2015.
[15] Pam Wolf Tail: Sister of the Chief and an owner of Peigan Taxi also referred to in evidence as Pam Strikes With A Gun.
[16] Piikani Nation Removal Appeals Board (the Board): The Piikani Nation Removal Appeals Board is governed by the Piikani Nation Election Regulation section 21.01-23.01. The Board is composed of members of Blackfoot origin, who are not a member of the Piikani First Nation and at least the age of 21. To be eligible the individual must be from the other Blackfoot people as they have the ability to interpret and apply piikanissini, due to integration as Blackfoot people through language, culture and history. This Board is governed by statutory law and Piikanissini. The members appointed were:
a) Roy Fox a member of the blood tribe (Kainai);
b) Jack Royal a member of the Siksika Nation;
c) Carol Murray a member of the Amsskapipiikani;
d) (alternative member) Gilbert Eagle Bear Sr. a member of the Blood tribe (Kainai)
[17] Honoraria: The honoraria is a traditional concept related to traditional exchanges creating a moral obligation without legal obligation. The honoraria is not wages or pay and is not treated as income as no unemployment insurance is deducted. The First Nation feels it is a public service to be a Chief to their people, and even though that is enough, the First Nation still gives a discretionary honoraria. The Piikani Nation Council decided that the Board should review if the honoraria was allowed. I would equate it with what is described an honorarium but in this decision the term used by the first nation is used which is honoraria.
[18] Mary Ann McDougall Elders Centre: An Elders center on the Piikani First Nation.
[19] Peigan Taxi: Peigan Taxi provided medical taxi service for 23 years to the Piikani Nation. The Peigan Taxi is owned by Pam Wolf Tail who is the Chief’s sister. Peigan Taxi had a contract with Health Canada until 2011. In 2011, Health Canada did not renew the contract with Peigan Taxi and instead provided the Piikani Nation Heath Department with a fixed amount for medical transportation.
[20] Piikanissini: piikanissini is a set of guiding principles by which the Nation governs itself. The document Piikanissini is a declaration of intent to continue to govern the Nation in accordance with piikanissini without defining it. Created in 2002, this is not a statement of principles but rather a statement of continuation of oral customs and traditions of piikanissini. The word piikanissini is distinguished from the document Piikanissini. The word piikanissini refers to a way of life of the people of the Piikani Nation. The Piikani Nation has always had an oral tradition and they have described it like a living thing that has adapted over time to changing circumstances, similar to the common law. The Piikani law interacts with the Indian Act which is the general law of Canada (Appendix A).
[21] Piikani First Nation: member of the Blackfoot Confederacy Treaty 7 and is located in southern Alberta with mailing address Brocket, Alberta.
[22] Piikani Investment Trust (PIT) and its subsidiary Piikani Energy Corporation (PEC): Since 2002 the Piikani First Nation has a $64.3 million trust structure. PIT approves loans from the Piikani Trust. The Piikani Nation brought insolvency proceedings against PIT and PEC because they borrowed $14.25 million from Piikani Trust and the loans have not been repaid. The Piikani Nation has been negotiating with the Trustee in Bankruptcy and CIBC Trust Corporation to make a proposal to Creditors under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 in order to address PIT’s debt situation.
[23] Piikani Nation Council (Council): a Council of the band pursuant to s. 2(1) of the Indian Act.
[24] Piikani Nation Councillors (Councillors) and Respondents: Maurice Little Wolf; Eloise Provost, Doane Crow Shoe, Angela Grier, Andrew Provost Jr. Clayton Small Legs (Acting Chief after last suspension), Kyle David Grier, Serene Weasel Traveler, Wesley Provost, Willard Yellow Face, Casey Scott, Fabian North Peigan (Petitioner).
[25] Piikani Nation In-House Counsel: Michael Pflueger who was also a defendant in the Alberta Queen’s Bench Action, dated December 21, 2012, brought by the Chief.
[26] Piikani Nation Election Bylaw, 2002 and Regulations (Election Bylaw or Election Regulation): The bylaws and regulations were passed on June 21, 2002 by three readings of Council without a referendum. The bylaws and regulations were used in three elections, are generally accepted by the community and they are recognized by the Court as a custom election bylaw. The bylaws and regulations provide for the election, removal and suspension of members of Council. The bylaws and regulations incorporate both Piikanissini and piikanissini. The Piikani Nation Election bylaw sections 10.04, 10.04.02, 10.05 and 10.08 (Appendix B).
[27] “Roles and Responsibilities of Chief and Council”: Though few of the Piikani Nation’s laws are written, this document was adopted by Council in September 1985. Included in the document is how to deal with suspension or removal of member of Council. It is a policy document and not a custom election bylaw and was reaffirmed in 1999. As practices evolve, it is not strictly followed as some parts are altered by custom or other documents. When there are gaps, Roberts Rules of Order are followed to supplement this document (Appendix C).
[28] Tanya Potts: Finance Controller of Piikani First Nation.
III. Preliminary Issues A. Proper parties [29] The Piikani Nation Council argued that they should not be a party to this application. Rule 303 of the Federal Courts Rules states that the tribunal whose decision is being reviewed should not be named as a party.
[30] The decisions not to pay the Chief’s legal fees and honoraria are the Council’s decisions. But as there was no motion at any stage, including at case management, to have the Attorney General added, the Court found it very helpful to have the Council involved. This approach was supported by the Federal Court of Appeal in Genex Communications Inc v Canada (Attorney General), 2005 FCA 283. I treated the Council in the role as an intervener and used them to provide assistance to the Court regarding the Council’s jurisdiction, procedures and how it all unfolded.
B. Decisions-Rule 302 [31] More of a concern to me is that the Chief in the Amended Amended Application has at least 8 separate decisions to be reviewed. Some of those decisions are regarding her now expired suspensions and other decisions are ones that the Board or the Alberta Court of Queen’s Bench have already considered to some extent.
[32] The Federal Courts Rule 302 allows for a single decision to be reviewed. In cases where there are decisions below that are then reviewed by an appeal tribunal the Court will only deal with the decision of the appeal tribunal. In this case, the Board is a type of appeals tribunal that looked at all of the decisions made concerning the Chief’s removal as Chief. Consequently, I will only deal with the Board’s decision (Pieters v Canada (Attorney General), [2004] FCJ No 435; Unrau v Canada (Attorney General), [2000] FCJ No 1434).
[33] Further support of my decision is that the Board took all the information and all the previous decisions and heard the evidence of the parties. The Board has a lengthy detailed decision of 21 pages with several appendixes that discusses all of the decisions that factually led to the Board’s decision.
[34] This renders the underlying decisions moot as the live controversy over the suspensions is extinguished as they are expired and were part of the subject matter before the Board. I will not exercise my right to review the other decisions (Borowski v Canada (Attorney General), [1989] 1 SCR 342; Spidel v Canada (Attorney General), 2011 FC 999).
[35] That being said, I will exercise my discretion as an exception to Rule 302 and will review the decisions not to fund the Chief for legal fees or to pay the honoraria from January 8, 2013 onwards.
IV. Issues A. Did the Board have jurisdiction?
B. Was the Board biased or was there a reasonable apprehension of bias?
C. Does issue estoppel apply in this application?
D. Was the Board’s decision reasonable?
E. Was it reasonable that the Chief’s legal fees and honoraria were not paid by the First Nation?
1. Legal Costs
2. Honoraria
V. Relief Sought [36] The Chief seeks 21 different remedies as well as solicitor client costs in the Amended Amended Application. In the memorandum of fact and law, the Chief seeks 12 remedies plus solicitor client costs:
• Declaration that the Applicant is the Chief;
• Order that the First Nation is to pay the Chief honoraria from January 8, 2013 onwards and expenses claims dating back to April 1, 2012 onwards;
• Order that the Chief’s legal fees for the Petition and the Federal Court matter be paid by the Piikani First nation;
• Quash three motions;
• Quash four Band Council Resolutions (BCR’s);
• An injunction preventing anyone from failing to recognize the Authority of the Applicant as a Chief and to cease and desist from undermining her authority, and then ask that a number of powers be given back to the Chief;
• A writ of quo warranto requiring the Respondents to prove what authority they had to decide the Applicant was ineligible to hold office as Chief;
• A writ of certiorari setting aside the decisions to suspend or remove her as Chief;
• A declaration the Board does not have jurisdiction due to the invalid grant of authority;
• An Order quashing the pre-hearing decision of the Board dated November 20, 2013;
• Order quashing the pre-hearing decision of the Board dated December 11, 2013;
• An order that pursuant to Rule 302 that the decisions are a continuous course of conduct;
• Solicitor Client costs.
VI. Factual Circumstances [37] The following is a chronological summary of the material facts that I found were relied upon by the Board in its decision to remove the Chief.
[38] Chief Gayle Strikes With A Gun was elected Chief of the Piikani First Nation on January 5, 2011.
[39] Peigan Taxi provided medical taxi for 23 years and was owned by Pam Wolf Tail, the Chief’s sister. Peigan Taxi had a contract with Health Canada until 2011 when Health Canada did not renew the contract and instead provided the Piikani Nation Health Department with a fixed amount for medical transportation. This amount turned out to be less than what was paid to Peigan Taxi in 2011 with the contract. The Piikani First Nation attempted to negotiate a contract with Peigan Taxi to continue the service but a formal contract could not be agreed on.
[40] The Chief argues that on August 2, 2012, an agreement (from July 31, 2012 until March 31, 2013) was reached with Peigan Taxi for medical transport. The Chief says she was not interfering with the award of the medical health transport contract, she was just enforcing the agreement.
[41] The evidence was that on August 23, 2012, Bridget Kenna (CFO and acting CEO) called a meeting with the Health Director of Piikani Nation and Pam Wolf Tail to discuss Peigan Taxi. At the meeting Pam Wolf Tail and her husband attended and they asked that her sister the Chief be teleconferenced in. Bridget Kenna said that this would be a conflict. Despite Bridget Kenna’s concern, the meeting was moved into Council chambers and the Chief was teleconferenced in to participate in the meeting. Bridget Kenna told the Chief, Council, Pam Wolf Tail and her husband that she believed it was a conflict of interest for the Chief to be involved in the discussion. The Chief spoke to the Council members and then hung up.
[42] Later that day Bridget Kenna received this email from the Chief:
On 23.08.2012 16:38, Gayle wrote:
Bridgett, you did not take my directions seriously today and I am very disappointed with regard to my phone call today. I am the Chief of the Nation and you do not have the right to tell me that I cannot sit in on this or any meeting. You need to know your place and I will not allow this to happen. If it happens again, I will dismiss you. So, I am reiterating, I am instructing you to pay Peigan Taxi next week at $9367.00 The taxi contract is NOT going out for bids. I am instructing you to work on a contract with Peigan Taxi immediately. You will also begin to work on releasing Acting Director at the time Lorilei North Peigan immediately due to insubordination. There will be no further discussion on this.
[43] The Council passed a motion on August 28, 2012, that suspended the Chief for the actions that occurred at the August 23, 2012 meeting. A second motion was passed that the Chief “can no longer provide direction to any manager, she requires a quorum of seven to make any Administrative and/or financial decisions.”
[44] The Piikani Health department issued a cheque to Peigan Taxi at the end of the month and sent it for the proper signatures. At that time, the signing authorities needed for cheques were the co-manager of Piikani Nation (MNP LLP) and one designated Councillor. Bridget Kenna obtained the signature of the co-manager but there were not sufficient funds to cover the cheque, so the CFO was going to hold onto the cheque until there were sufficient funds. When Bridget Kenna asked the designated Councillor to sign the cheque, he would not sign because there were not sufficient funds even though the CEO said she would hold on to the cheque until there were funds.
[45] On August 29, 2012, the Chief asked Bridget Kenna to immediately terminate or suspend the Health Director, however, she refused because she said the Chief needed a quorum of seven Councillors to do so. The next day, on August 30, 2012, Bridget Kenna was meeting with the Health Director when the Chief asked if she had drafted the letter to terminate the Health Director. Bridget Kenna replied again that she did not terminate the Health Director because policy required that the Chief needed seven Councillors to tell her to. The Chief then suspended the Health Director herself and told Bridget Kenna she had to leave. The Chief said Bridget Kenna and the Health Director could gather their things and then leave the building immediately or she would call the police. Bridget Kenna went to the Council chambers and announced that the Chief told her to leave or the police would be called, then left for the day.
[46] The following day, on August 31, 2012, Pam Wolf Tail telephoned the Piikani Health department finance clerk. Pam Wolf Tail says that the clerk told her that there was money to cover the cheque but that the cheque had been sent to the band office for signatures. At 12:00 pm, Pam Wolf Tail was referred to the band office. When Pam Wolf Tail went to the band office she was told by the band secretary that she would have to come back because they had to call Bridget Kenna, the CFO to release the cheque. At 1:00 pm when Pam Wolf Tail returned she was told the clerks at the band office were instructed not to release the cheque until Tuesday September 4, 2012.
[47] Pam Wolf Tail and her husband then drove to where Councillor Mr. North Peigan was living to ask him when the cheque would be released. Pam Wolf Tail’s evidence is that she talked to Mr. North Peigan, who called the CFO, and told her she could pick up the cheque.
[48] Mr. North Peigan’s evidence is that when he spoke to the CFO she indicated that she did not think there were sufficient funds but she would double check. Mr. North Peigan says he told Pam Wolf Tail and her husband that the CFO was going to check if there were funds and that Pam and her husband could go to the band office and speak to the CFO. He said he told the Wolf Tails that if there were funds, the CFO would release the cheque.
[49] Bridget Kenna did not attend the Piikani Nation on Fridays, so on Friday August 31, 2012, the finance controller telephoned her to tell her that the Chief was demanding the cheque. When the finance controller did not produce the cheque, the Chief told her to leave the building. Before the finance controller left the building, she locked the cheque in the safe.
[50] Bridget Kenna then received a call from the co-manager of Piikani First Nation, MNP LLP, saying that the Chief had a new cheque and wanted him to sign it but he was unavailable to do so. The Health department finance clerk informed Bridget Kenna that the Chief had gone to the Health department and told the Health department finance clerk to write out a new cheque payable to Peigan Taxi.
[51] The Board found that where there was an inconsistency between the testimony of Pam Wolf Tail and other evidence, particularly when surrounding the picking up of the cheque, they would rely and accept the other evidence. Consequently, the Board accepted the evidence of Mr North Peigan regarding what was said to whom regarding the funds that day.
[52] Bridget Kenna was fearful of her safety and worked from home from September 4 to September 6, 2012.
[53] The Council met on September 5, 2012 to discuss the incident and as a result suspended the Chief for 30 days with pay. At the meeting, Council gave a power point presentation showing where Council thought the Chief had a conflict regarding the Peigan Taxi service and that it was nepotism and that she had exceeded her authority. The BCR for the suspension was signed on September 6, 2012.
[54] On September 6, 2012, Council held a meeting in Council chambers where the Chief attended and was disruptive and refused to leave. Council adjourned the meeting and continued the meeting in Lethbridge.
[55] The Chief and her supporters attended the First Nation’s Administration office on September 12, 2012, and disrupted the staff and her supporters and verbally said inappropriate things to the staff. The Chief, her supporters and media came through the back offices which disrupted business.
[56] On September 13, 2012, the Chief told the CFO she was suspended and had to leave the building.
[57] On that same day when an elder entered the Administration office he heard people discussing the Chief’s suspension. As an elder, he told them it was an internal matter that Council needed to settle it in the Council chambers and not in public. The elder was invited by the Chief to attend the Council chambers to help them settle it. When the elder was in the chambers he spoke of the traditions and the need to settle this matter. The elder said a prayer and then left Chief and Council in the chambers to settle the dispute.
[58] The Council and the Chief met for four hours to try to resolve the matter. The Chief’s evidence is that she thought it was resolved but learned it was not.When the elder came back at 6:00 pm and found it not settled, he told the Council that they needed to go on a retreat to work on healing. Before he left he said another prayer.
[59] On September 14, 2012, the Chief and Council went to Head Smashed In Buffalo Jump to reintegrate the Chief. Reintegration meetings were the practice when someone was returning after a suspension. At that meeting the Chief ignored her suspension issues and attempted to do other First Nation business. Given that the Chief would not cooperate, the Council decided to uphold the Chief’s suspension.
[60] On September 17, 2012, the Chief and her supporters came to the Administration office again and instructed the CFO to leave the building and further disrupted staff.
[61] The Chief wrote to the Council on September 20, 2012 to tell Council that they had no lawful basis for her suspension because she removed herself from the vote of whether or not to renew the contract of Peigan Taxi that her sister was affiliated with.
[62] The Council drafted reasons for the suspension. The Chief was told by a letter dated September 26, 2012 that the reasons had been circulated at Council but her evidence is that she was not given them for weeks after.
[63] On September 27, 2012, Justice MacLeod of the Alberta Queen’s Bench Court granted a mandatory injunction prohibiting the Chief from attending at the Piikani government premises until her suspension ended on October 5, 2012. This order dated September 27, 2012 upheld the Chief’s 30 day suspension.
[64] The Chief testified she did not attend the Administration office but continued to conduct Piikani business by seeing people at her home because she felt she could not tell people she could not talk to them.
[65] The Chief did not attend the office on October 5, 2012 when her suspension ended. Then a family member passed away so she did not work on Monday October 9, 2012. The acting Chief wrote to her telling her they had set aside October 12 or 15, 2012 for her reconciliation meeting. The Administration office received a Doctor’s note on October 10, 2012 that the Chief was ill and would not be able to work until November 5, 2012. The Chief took medical leave of absence from October 5, 2012 to November 5, 2012.
[66] The acting Chief asked the Chief if she wished to adjourn the reconciliation meeting until November 6, 2012 and Council received no response.
[67] By October 29, 2012, November 6, 2012 was no longer available for the reconciliation meeting because Council had scheduled another meeting in Calgary. Because of this, Council wrote the Chief and asked if they could have the reconciliation meeting on November 2 or 16, 2012. The letter was not delivered to the Chief until November 5, 2012.
[68] The Chief returned to work on November 5, 2012. The Piikani First Nation had been involved for a year in negotiations with the Trustees in Bankruptcy of PIC, PEC and CIBC Trust Corporation to make a proposal to Creditors. The day the Chief returned she was briefed on the Piikani Investment Corporation’s insolvency proceedings by the in-house legal counsel Michael Pfueger. As part of the briefing, the Chief was given a copy of the proposal that was confidential and watermarked as such with her name.
[69] On November 5, 2012, the Chief instructed in-house counsel Michael Pfueger to adjourn the Court application. In-house counsel refused because the Chief’s instructions were contrary to the instructions he had received from Council regarding the court appearance.
[70] Later on November 5, 2012, members of Council gave the Chief a letter regarding the reconciliation meeting scheduled in Calgary the next day.
[71] On November 6, 2012, the Chief requested that the reconciliation meeting be adjourned and Council agreed. The reintegration meeting was to take place on November 8, 2012 in Calgary, and they emailed the Chief and told her that they would authorize payment of her travel expenses. The Chief emailed Council and requested that the meeting be held on November 16, 2012 instead, and again Council agreed.
[72] On November 15, 2012, the Chief attended the Alberta Queen’s Bench Court application to appoint a liquidator. Acting as Chief she sought an adjournment of the application from the court which was contrary to instructions of Council.
[73] On November 16, 2012, the Chief attended the reintegration meeting. At the meeting the Chief was told that the Council had developed fifteen (15) questions that they would ask her that she would answer consecutively. The Chief said that being asked these questions and having to answer them consecutively and not being given a copy of the questions was a departure from the previous reintegration meetings. The Chief says oral discussions occurred at reintegration meetings in four previous suspensions of Councillors.
[74] The Chief wrote the questions down but refused to answer them until she had heard them all. The Chief’s evidence is that even after she heard the questions she felt pressured and felt that the meeting was unfair. The Chief requested an adjournment without answering the questions.
[75] On November 19, 2012, Mr. North Peigan informed the Chief by letter that the Council had passed a motion suspending the Chief for the second time from her position as Chief for a period of 30 days with honoraria.
[76] Included with the letter was a copy of the two motions that were passed that stated the suspension followed a duly convened meeting of the Council but there was no BCR with the letter.
[77] On November 20, 2012, the Chief, her partner Larry Provost, her sister Pam Wolf Tail and her father attended an elder’s birthday party that they were not invited to at the Mary Ann McDougall Elders Center. The Chief says she is as ex officio member and can attend if she wishes.
[78] The Chief tried to talk to the elders about her suspension and Council business. Her common law partner yelled and was abusive, traumatizing the elders. The Chief and her family were asked to leave and reluctantly did. Complaints were filed by the elders. By all accounts the Chief herself was not abusive but she did try and discuss Piikani First Nation business when she was suspended and did not stop her family from being abusive to the elders.
[79] In a letter dated December 7, 2012, Council advised the Chief that absent the permission of the Council, the Chief could not run in the by-election or general election if she was removed by the Board. She was given permission to resign and if she choose not to then the process to remove her would proceed before the Board.
[80] The Chief wrote a letter dated December 7, 2012 to Council that told them the suspensions were unlawful. She said that other chiefs that were in the process of being removed had their legal counsel funded and that pursuant to sections 11.03 and 11.04 of the Piikani Nation Election Bylaw 2012 (Election bylaw) that she has a right to legal counsel. The Chief says she is indemnified and has a right to funding for her legal counsel.
[81] On December 13, 2012, the Chief commenced Alberta Queen’s Bench action No. 1201-15897, in her own name and in the name of the Piikani Nation. The same day she filed an affidavit in the insolvency proceedings opposing the Proposal and attached what has been characterized as solicitor-client privileged documents (correspondence between legal counsel to the Chief and Council).
[82] On December 13, 2012, the Chief filed a Notice of Application for judicial review in respect of the September 5, 2012 and November 19, 2012 suspension decisions (Notice of Application, T-2224-12).
[83] The Chief on December 14, 2012 sent a letter to Council saying she would not resign. The Chief submitted a Petition to have Councillor Mr. North Peigan and Doane Crow Shoe removed as Councillors. The Petition was rejected pursuant to the Piikani Election bylaw section 10.02, as it did not comply with section 101.01.01 of the Election bylaw because the Petition did not have evidence attached and did not have the required signatures of one third of the electorate. Nor did it comply with section 10.01.02 as the Chief was ineligible while under suspension.
[84] The Chief said she resumed her duties as Chief on December 19, 2012.
[85] Councillor North Peigan on December 18, 2012 sent a Petition to the CEO for removal of the Chief pursuant to sections 10.01 through 11.08 of the Election bylaw. The Petition was placed on the Council’s agenda for December 20, 2012.
[86] On December 20, 2012, the Chief produced the answers to the questions asked of her at the reconciliation meeting that she previously refused to answer. She was further questioned on the questions and her answers. At the meeting the Chief asked that Council move on to Council business and deal with her answers later. Council refused and asked her to leave the meeting so they could review her answers. The Petition was to be heard but was adjourned.
[87] On December 21, 2012, the Chief unilaterally brought an action in Alberta Court of Queen’s Bench to sue a number of lawyers and law firms on her own behalf, and on behalf of the Piikani First Nation.
[88] On January 8, 2013, the Chief went to work and was asked why she was there as she was suspended.
[89] On January 8, 2013, Mr. North Peigan’s Petition for the Chief’s removal was heard at Council. As the Petitioner, Mr. North Peigan did not participate in the deliberations or decision to recommend referral to the Board and did not vote or sign the BCR.
[90] At the January 8, 2013 Council meeting, three Councillors were absent because of illness. The Chief was present and made submissions on her own behalf. After deliberation, the Councillors signed and passed a BCR recommending that they forward the matter to the Board to determine whether the Chief should be declared ineligible to hold office. The Council also suspended her as Chief without honoraria until a decision was rendered by the Board.
[91] The BCR was not signed by a unanimous Council as some members were ill, the Petitioner chose not to, and of course the Chief herself did not sign.
[92] On January 30, 2013 by BCR, the members of the Board were appointed in accordance with section 21.03 of the Election Regulation after confirming that all members were over 21 years old and of Blackfoot origin. The Petitioner did not participate in the deliberations or appointment of the Board or the vote that formalized the appointment of the Board.
[93] On February 5, 2013, a hearing was held for #1201-15897 before the Associate Chief Justice J. D. Rooke of the Alberta Court of Queen’s Bench, for which he later issued an order.
[94] On February 8, 2013, the Chief, through her legal counsel, filed a Notice of Application for judicial review in respect of the January 8, 2013 Council decision that suspended her and that forwarded the matter to the Board (Notice of Application, T-282-13).
[95] On February 11, 2013, a BCR confirmed the Board after their January 30, 2013 appointment.
[96] On February 15, 2013, the Chief obtained privileged Piikani Nation documents relating to the Insolvency Proceedings. A party adverse to the First Nation filed a Court Action after being given these privileged documents by the Chief.
[97] In March 2013, there was an attempt by the Board to hold a traditional Healing Circle with the Chief and Council that would be facilitated by the Board. The Chief wished to partake in this Blackfoot tradition to resolve the issues.
[98] On April 19, 2013 the Chief says she was told by her legal counsel that the Council did not wish to do the Healing Circle. The Petitioner Mr. North Peigan’s evidence is that on May 10, 2013 he confirmed he was not prepared to engage in the Healing Circle as the Chief had not participated in good faith in the previous reconciliation and reintegration meetings.
[99] On April 26, 2013, the Chief was provided with reasons for the January 8, 2013 decision to remove her as Chief.
[100] The Board wrote a letter to Council on May 1, 2013 saying that the January 8, 2013 BCR seeking her removal was not unanimous according to the Piikani Nation Custom Election bylaw and Regulation. The Board suggested ways that Council could comply with the bylaw.
[101] On May 8, 2013, a BCR was passed and signed by all Council members (except the Chief) including the Petitioner in his role as Councilor, to ratify retroactively and to reaffirm the recommendation of the decision to suspend the Chief without honoraria and to have the Board determine if the Chief should be removed.
[102] The Chief was not notified of the May 8, 2013 meeting or given an opportunity to respond. The Chief does not believe that all twelve (12) Councillors were present and a full meeting was held; she believes that the BCR first was written and then signatures were obtained.
[103] The Chief states that she did not appoint an acting Chief and the BCR’s were not passed at duly-convened Chief and Council meetings as required by Piikani customary law. The Chief says that without her as the elected Chief being present, the Council does not exist separate from her and this is supported by the Roles and Responsibilities of Chief and Council document (Appendix B).
[104] On May 28, 2013, by order, Prothonotary Roger Lafrenière consolidated files T-2224-12 and T-262-13 and gave the Chief until May 31, 2013 to file an Amended Notice of Application in the form attached, and scheduled a hearing for a proposed motion for injunctive relief for June 17, 2013.
[105] On June 14, 2013, on the consent of the parties, Justice Sean Harrington ordered the motion scheduled for June 17, 2013 to be adjourned to a date fixed by the judicial administrator.
[106] The Chief brought an Application in file T-2224-12 for an injunction preventing the Piikani First Nation from holding a hearing by the Board. On September 19, 2013, Justice Harrington adjourned sine die the motion so that the Board hearing could proceed as he found that all adequate alternative remedies had not been exhausted.
[107] The hearing by the Board was set for November 29, 2013. The Board produced a hearing Rules of Conduct (Appendix D) on October 17, 2013 and provide it to the Chief.
[108] The pre-hearing application was heard by telephone on November 20, 2013 and the Chief’s legal counsel asked that the issues of jurisdiction, bias and legal fees be heard as soon as possible.
[109] On November 22, 2013, the Board decided the pre-hearing application and determined that there was no bias, that the Board was properly constituted and it did not order the Chief’s fees to be paid. A BCR dated November 14, 2013 w