2022 FC, 2022 FC 1627

Date: 20221125 Docket: T-2191-22 Citation: 2022 FC 1627 Ottawa, Ontario, November 25, 2022 PRESENT: Madam Justice McDonald BETWEEN: SALT RIVER FIRST NATION NO. 195 Applicant and CECILIA (TONI) JOSEPHINE HERON Respondent ORDER AND REASONS [ 1 ] Further to an Order issued on October 23, 2022 [October Order], the Applicant, Salt River First Nation No. 195 [SRFN], seeks an additional Order, as a result of decisions made at a meeting of members of SRFN on October 23, 2022.

These decisions purport to remove two sitting councillors, Acting Chief Brad Laviolette and Councillor Kendra Bourke, from their positions. [ 2 ] On this Motion, SRFN seeks the following: 1. an Order staying or suspending the decision of the meeting called by the Respondent that was held on October 23, 2022 at Roaring Rapids Hall in Fort Smith, in the Northwest Territories until this Court gives judgment on the merits in these proceedings, such stay or suspension to expire 20 days from the issuance of this Court's final judgment; and 2. an interlocutory Order prohibiting the Respondent and all other persons who receive notice of this Order or who are told about this Order from representing to any members of the Public, either directly in person or in writing or in print, by radio or television, or using an electronic or internet or social media platform, that Councillors Don Beaulieu, Kendra Bourke, Freda Emile, Brad Laviolette, Levi MacDonald, and Warren Sikyea are not the elected Councillors of the Salt River First Nation entitled to exercise all of the powers of members of Council. [ 3 ] In their written submissions, SRFN expanded their requested relief to include the following: 3. an Order that “Public” includes all members of the Salt River First Nation No. 195; all employees and staff of the Salt River First Nation No. 195; indigenous, federal, provincial, territorial and municipal governments or their departments, employees and staff; individuals; and corporations doing business with or who may be considering doing business with the Salt River Fist [ sic ] Nation No. 195; or the media, print, radio, television or other electronic or internet platform; 4. an Order that the Order may be posted on the front doors of the Salt River First Nation Conference Centre and Offices at 195 MacDougal Street, Fort Smith, Northwest Territories and in any other locations in Fort Smith that Salt River First Nation No. 195 has posted public notices for the information of Members and the general public in the past; and 5.

Order that costs of this application be in the cause. [ 4 ] This Motion is supported by the Affidavit of Acting Chief Brad Laviolette, sworn on November 2, 2022, and the Affidavit of Councillor Kendra Bourke, sworn November 2, 2022. [ 5 ] In response to this Motion, the Respondent, Chief Cecilia (Toni) Josephine Heron, filed an Affidavit, sworn on November 14, 2022. [ 6 ] In the underlying judicial review application, the Applicant challenges the Respondent’s decision to call the October 23, 2022 meeting.

The Applicant seeks an order of quo warranto, declaring the Respondent lacked the authority to call the special meeting due to her suspension, and an order of certiorari , quashing and setting aside the decision to call the special meeting. [ 7 ] This Motion was heard by videoconference on November 21, 2022, in conjunction with a request for injunctive relief in the related matter of T-2206-22, where the Respondent is the applicant. In T-2206-22, the Respondent challenges the validity of the Band Counsel Resolution [BCR], which suspended her as Chief for 60 days.

Separate Orders and Reasons are being issued on each motion. I have denied the relief requested in T-2206-22. [ 8 ] The relevant background to this matter is outlined in my October Order. For the purpose of this Order, I will briefly repeat some relevant facts. Background [ 9 ] In the September 19, 2022 SRFN election, the Respondent was elected Chief and six Councillors were acclaimed: Don Beaulieu, Kendra Bourke, Freda Emile, Brad Laviolette, Levi MacDonald, and Warren Sikyea. [ 10 ] On October 13, 2022, four Councillors of SRFN issued a BCR suspending the Respondent from exercising any and all of the duties

and powers of the Chief of SRFN for a period of 60 days pursuant to

Section 153A of the SRFN Election Code.

Councillor BradLaviolette was appointed Acting Chief for the duration of the suspension. [11] This BCR also cancelled a "“special meeting”" that had been previously called by the Respondent for October 22, 2022, regardingthe removal of Councillors Laviolette and Bourke. [12] Pursuant to the October Order, the Court prohibited the Respondent from exercising or performing, or purporting to exercise orperform, any of the duties or powers as Chief of SRFN until the suspension expired. [13] Subsequent to the issuance of the October Order, a meeting of SRFN members took place on October 23, 2022.

The Respondentclaims this was a "“special meeting”" held in compliance with the Election Code. At this meeting, a vote was taken by secret ballot,which resulted in a decision to "“remove”" two Councillors. Test for Injunctive Relief [14] The Applicant asks the Court to stay the effect of the October 23, 2022 decisions, which purport to remove Acting Chief Lavioletteand Councillor Bourke. [15] The three-part test from RJR – Macdonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 and R vCanadian Broadcasting Corp, 2018 SCC 5, requires SRFN to establish (

i) there is a serious issue to be tried; (ii) it will suffer irreparableharm if the order is not granted; and (iii) the balance of convenience favours making the Order, considering all the circumstances. [16] The elements of the injunction test are conjunctive, meaning SRFN must satisfy all three parts of the test. An injunction is anextraordinary remedy that the Court grants only at its discretion.

Is there a serious issue? [17] The Applicant argues the decisions to remove two sitting Councillors arising from the meeting on October 23, 2022 raise seriousissues. [18] A "“special meeting”" has a specific meaning under the SRFN Election Code and sections 153-157 of the Election Code outline theapplicable procedures.

Whether the meeting of October 23 was a special meeting within the meaning of the Election Code is in dispute,as the BCR suspending the Respondent as Chief also cancelled the special meeting. [19] However, even if the special meeting was called while the Respondent was the Chief, the fact remains that she could not havepresided over the meeting as Chief in light of the October Order. This therefore calls into question the validity of any decisions arisingfrom this meeting. [20] Furthermore, the decisions purport to remove from office two sitting SRFN Councillors.

The decision to remove two Councillorsfrom office who were elected without challenge in September has the potential to cause serious governance issues for the SRFN. [21] Although the Respondent argues the Court should not stay the "“removal”" decisions, as SRFN has not sought to judicially reviewthose decisions, in my view this submission presumes that the October 23 meeting was valid and that the removal decisions are valid.That is very much a live issue, which cannot be resolved on this Motion. [22] In any event, to the extent that Councillors serve as part of the governance body of the SRFN, actions taken to purportedly removeCouncillors from office are actions that are in effect taken against SRFN.

Therefore, the removal decisions directly impact SRFN and arewithin the ambit of the underlying judicial review application. [23] Additionally, if Acting Chief Brad Laviolette is removed from office, while the Respondent is still suspended from her role asChief, SRFN is left without a Chief. This raises a serious issue of governance for SRFN. [24] Overall, I am satisfied SRFN has raised serious issues with respect to who has the lawful authority to govern the Nation. Is irreparable harm established? [25] Irreparable harm refers to the nature of the harm suffered rather than its magnitude.

It is harm that cannot be quantified in monetaryterms or which cannot be cured (RJR at 341). Evidence of harm must be categorical and not speculative. [26] The Applicant submits the ambiguity caused by this governance dispute over who has the lawful authority to govern SRFN amountsto irreparable harm.

As an illustration, the removal letter served on Councillor Bourke, which is attached to her Affidavit, is copied tovarious institutions including: Indigenous and Northern Affairs Canada, the Fort Smith RCMP Detachment, the Fort Smith Bank ofMontreal branch, this Court, and the Dene National/ Assembly of First Nations Regional (NWT) Office. [27] Copying these institutions on the "“removal”" letter raises issues as to who has the lawful authority to act on behalf of SRFN.

Thisconduct undermines the authority of the SRFN Council members and can have an impact on the ability of SRFN to operate and conductits day-to-day operations. [28] In the circumstances, I am satisfied there is irreparable harm to SRFN.

Balance of Convenience [ 29 ] In my view, the balance of convenience favors granting the relief sought by SRFN to allow the SRFN Council to continue to function pending the resolution of the underlying judicial review application. [ 30 ] The Court will order that the decisions arising from the October 23, 2022, meeting are of no force and effect and that Acting Chief Laviolette and Councillor Bourke may continue to carry on their roles as Councillors pending the resolution of the underlying judicial review application. ORDER IN T-2191-22 THIS COURT ORDERS that: 1 .

The removal decisions of the meeting called by the Respondent held on October 23, 2022 at Roaring Rapids Hall in Fort Smith, in the Northwest Territories are stayed and suspended until this Court gives judgment on the merits in these proceedings; 2 . Until this Court orders otherwise, the Respondent and all other persons who receive notice of this Order are prohibited from representing to any members of the Public, either directly in person or in writing or in print, by radio or television, or using an electronic or internet or social media platform, a .

That Don Beaulieu, Kendra Bourke, Freda Emile, Brad Laviolette, Levi MacDonald, and Warren Sikyea are not the elected Councillors of the Salt River First Nation No. 195; or b .

That Don Beaulieu, Kendra Bourke, Freda Emile, Brad Laviolette, Levi MacDonald, and Warren Sikyea are not entitled to exercise all of the powers of Councillors of Salt River First Nation No. 195; 3 . “Public” referred to in paragraph 2 above includes all members of the Salt River First Nation No. 195; all employees and staff of the Salt River First Nation No. 195; indigenous, federal, provincial, territorial and municipal governments or their departments, employees and staff; individuals; and corporations doing business with or who may be considering doing business with the Salt River First Nation No. 195; or the media, print, radio, television or other electronic or internet platform; 4 .

A copy of this Order shall be posted on the front doors of the Salt River First Nation Conference Centre and Offices at 195 MacDougal Street, Fort Smith, Northwest Territories and in any other locations in Fort Smith that Salt River First Nation No. 195 has posted public notices for the information of Members and the general public in the past; and 5 . The Applicant is entitled to costs, which shall be assessed in the cause.

"Ann Marie McDonald" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-2191-22 STYLE OF CAUSE: SALT RIVER FIRST NATION NO. 195 v CECILIA (TONI) JOSEPHINE HERON PLACE OF HEARING: held by videoconference DATE OF HEARING: November 21, 2022 ORDER AND reasons: MCDONALD J. DATED: november 25, 2022 APPEARANCES :

David C. Rolf, K.C. For The Applicant Evan C. Duffy For The Respondent SOLICITORS OF RECORD : MLP Aikins LLP Barristers and Solicitors Edmonton, Alberta For The Applicant Bailey, Wadden & Duffy LLP Barristers and Solicitors Edmonton, Alberta For The Respondent