2022 FC, 2022 FC 1246

Date: 20220830 Docket: T-1550-22 Citation: 2022 FC 1246 Vancouver, British Columbia, August 30, 2022 PRESENT: The Honourable Mr. Justice Favel BETWEEN:KARL STONE IN HIS CAPACITY AS COUNCILLOR FOR DAKOTA TIPI FIRST NATIONApplicantandTHE MINISTER OF INDIGENOUS SERVICES CANADA, BURKE RATTE AND DAKOTA TIPI FIRST NATION ASREPRESENTED BY ERIC PASHE, KYLE PASHE, CAMERON HALLRespondents ORDER AND REASONS I.

Nature of the Matter [1] Karl Stone [Applicant], a councillor of the Dakota Tipi First Nation [DTFN], brings a motion seeking an interlocutory injunctionprohibiting an electoral officer [EO] from continuing to act as the EO for the DTFN general election [Election], scheduled for tomorrow,August 31, 2022, in order to have a new EO appointed at a proper DTFN Band Council meeting. In effect, the Applicant asks this Courtto put a stop to the Election. [2] The motion is dismissed. My reasons are set forth below. II.

Background [3] The DTFN conducts its elections in accordance with the First Nations Elections Act, SC 2014, c 5 [FNEA] and the First NationsElections Regulations, SOR/2015-86 [FNER]. The Election is scheduled for tomorrow, August 31, 2022. Several steps in the Electionprocess have already occurred: Nominations took place on July 27, 2022; an Advanced Poll was conducted in Winnipeg on August 22,2022; and August 25, 2022 was the deadline to request mail-in ballots. [4] The subject of this motion concerns the appointment of one of the EOs, Burke Ratte [EO Ratte].

The Applicant has concerns aboutEO Ratte’s ability to fairly and impartially administer the Election. Specifically, stemming from information provided by a communitymember, the Applicant has concerns about potential and actual business dealings between DTFN and EO Ratte that give rise to a conflictof interest, as well as an arrangement with a business associate of EO Ratte to provide election funds to Chief Eric Pashe.

The Applicantdoes not directly contest the appointment of the other EO, Sherry Lynn Gobeil, apart from submitting that a co-EO is not permitted underthe FNEA or the FNER. [5] The Applicant states that the appointment of the EOs was improper, as the Applicant was not given notice of the Band Councilmeeting when the EO was to be selected.

Rather, he only became aware of the EO’s appointment on July 21, 2022, followingconversations with representatives from Indigenous Services Canada and DTFN Chief Eric Pashe. [6] The Respondents state that the EO’s appointment was proper, as it is well established that Band Council meetings occur everyThursday. There was a proper quorum of the Band Council on June 23, 2022, when the Band Council authorized the appointment of theEOs. The Band Council Resolution confirming the appointment of the EOs is dated June 27, 2022. [7] The only issue for consideration is whether the test for an injunction has been satisfied.

III. Analysis [8] The parties agree that an interim injunction can only be granted if the Applicant satisfies a three-part conjunctive test (RJR-MacDonald Inc v Canada (AG), (SCC), 1994 1 SCR 311 at 314-15 [RJR]):

(1) A preliminary assessment must be made of the merits of the case to ensure there is a serious question tobe tried;

(2) It must be determined whether the applicant would suffer irreparable harm if the application wererefused; and

(3) An assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. [ 9 ] The first part of the RJR test has subsequently been modified in the case of a mandatory injunction, which requires an assessment of whether an applicant has shown a strong prima facie case ( R v Canadian Broadcasting Corp , 2018 SCC 5 at paras 15-16 [ CBC ]). A. A Serious Question to be Tried/A Strong Prima Facie Case [ 10 ] The Applicant has failed to satisfy this part of the test.

I will provide my reasons following an overview of the parties’ submissions. [ 11 ] The Applicant submits that the threshold for this part of the test is low and has been met. Specifically, the serious question has been satisfied because EO Ratte is in a conflict of interest and his integrity is in question, as set out in another case before this Court ( Whitford v Red Pheasant First Nation , 2022 FC 436 ).

The Applicant also states that he was not given notice of the Band Council meeting where EO Ratte was appointed. [ 12 ] The Respondents submit that the higher threshold applies because this is a mandatory injunction. The Respondents further submit that the Applicant has not satisfied this elevated threshold. Specifically, the Applicant has not demonstrated a strong likelihood of success because he had notice of the Band Council meeting and there is no evidence to support the allegations against EO Ratte.

In the event that the Court finds that the Orders are prohibitive in nature, triggering the lower threshold, the Respondents submit that this lower threshold has also not been met.

There is no strict requirement for providing notice and, given the fact that Band Council meetings were held every Thursday, the Applicant was aware. [ 13 ] The first part of the test also requires a Court to take into account whether other available remedies have been exhausted ( Newbould v Canada (AG) , 2017 FCA 106 at para 24 ; Dugré v Canada (AG) , 2021 FCA 8 at para 34 , citing Canada (Border Services Agency) v CB Powell Limited , 2010 FCA 61 at paras 30-32 ; McDonald v Fond du Lac Denesuline First Nation , 2021 FC 96 at para 16 [ McDonald ]). [ 14 ] If there is another available remedy and an applicant fails to seek redress through that process, the application will be considered to be premature.

In this case, I find that if the Applicant is of the view that the appointment of EO Ratte contravened the FNEA or the FNER , he can seek recourse through

section 31 of the FNEA : Contestation of election 31 An elector of a participating First Nation may, by application to a competent court, contest the election of the Chief or a Councillor of that First Nation on the Ground that a contravention of this Act or the regulations is likely to have affected the result. B.

Irreparable Harm [ 15 ] The Applicant submits that he will suffer irreparable harm because the integrity and accuracy of the Election results will be irreparably tainted, resulting in a loss of confidence in the democratic election process. [ 16 ] The Respondents submit that irreparable harm will be suffered by the DTFN if EO Ratte is not permitted to continue his duties and the Election is postponed. The Band Council’s term ends on September 1, 2022; accordingly, there will be difficulty in appointing another EO as there will be no Band Council in office. [ 17 ] Since

section 31 of the FNEA provides another remedy available to the Applicant, I find that the Applicant has not established that he will suffer irreparable harm ( McDonald at para 20 ). [ 18 ] The Applicant has failed to satisfy the conjunctive three-part test for the granting of an interlocutory injunction, having failed to establish that a prima facie case exists and irreparable harm will ensue if the application is not granted. As such, it is unnecessary to assess the balance of convenience part of the test. [ 19 ] The Applicant’s motion is dismissed.

ORDER in T-1550-22 THIS COURT ORDERS that the Applicant’s motion for an interlocutory injunction is dismissed with costs. "Paul Favel" Judge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: T-1550-22 STYLE OF CAUSE: KARL STONE IN HIS CAPACITY AS COUNCILLOR FOR DAKOTA TIPI FIRST NATION v THE MINISTER OF INDIGENOUS SERVICES CANADA, BURKE RATTE AND DAKOTA TIPI FIRST NATION AS REPRESENTED BY ERIC PASHE, KYLE PASHE, CAMERON HALL PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: August 30, 2022 ORDER AND REASONS: FAVEL J. DATED: August 30, 2022 APPEARANCES : Steven Hunter James Beddome For The Applicant Richard Buchwold, Q.C.

Joshua Lieberman For The Respondents SOLICITORS OF RECORD : Beddome and Longclaws Law Corporation Barristers and Solicitors Winnipeg, Manitoba For The Applicant Pitblado LLP Barristers and Solicitors Winnipeg, Manitoba For The Respondents