Balfour v. Norway House Cree Nation et al., (2006) 288 F.T.R. 182 (FC)

• Judge: Blais, J.
• Court: Federal Court (Canada)
• Case Date: December 13, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2006), 288 F.T.R. 182 (FC);2006 FC 213

Balfour v. Norway House (2006), 288 F.T.R. 182 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. FE.045

Marcel Luke Hertlein Balfour (applicant) v. Norway House Cree Nation Chief and Council and Ron Evans, Eric Apetagon, Eliza Clarke, Fred Muskego, Mike Muswagon, and Langford Saunders (respondents)

(T-588-04; 2006 FC 213)

Indexed As: Balfour v. Norway House Cree Nation et al.

Federal Court

Blais, J.

February 16, 2006.

Summary:

The applicant was an elected councillor of the Norway House Cree Nation Band Council. The respondents were the Chief and individually elected Band councillors. The applicant applied for judicial review with respect to decisions of the Band Council and sought a declaration in the nature of quo warranto.

The Federal Court allowed the application in part.

Editor's note: For another decision involving these parties see 288 F.T.R. 204; 2006 FC 266.

Administrative Law - Topic 5741

Judicial review - Quo warranto - When available - General - [See first Indians, Inuit and Métis - Topic 6224 ].

Administrative Law - Topic 5743

Judicial review - Quo warranto - When available - Jurisdiction - The Federal Court held that an Indian Band Council constituted a federal board pursuant to s. 18 of the Federal Courts Act and the court had jurisdiction to issue a writ of quo warranto to grant declaratory relief against a Band Council - See paragraph 20.

Administrative Law - Topic 5783

Judicial review - Quo warranto - Bars - Existence of alternative remedy - [See both Indians, Inuit and Métis - Topic 6238 ].

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Federal Court - Relief against federal boards, commissions or tribunals - [See Administrative Law - Topic 5743 ].

Courts - Topic 4054

Federal Court of Canada - Jurisdiction - Federal Court - Indians - [See Administrative Law - Topic 5743 ].

Indians, Inuit and Métis - Topic 6222.2

Government - Band councils (incl. chief and councillors) - Duty of procedural fairness - The applicant was an elected councillor of the Norway House Cree Nation (NHCN) - The respondents were the Chief and individually elected Band councillors - The applicant claimed that his honorarium and expense payments were unjustly curtailed or withheld because he was often in disagreement with other Band Council members and he was critical of Band Council procedures and decisions - The respondents admitted that the applicant's honorarium was reduced for purportedly acting to discredit the efforts of the Chief and Band Council - The Federal Court held that the respondents acted in bad faith and breached their duties of procedural fairness by not providing valid notification and reasons for the reduction in the applicant's honorarium and responsibilities and by not giving the applicant an opportunity to respond to the actions taken against him - The respondents also breached the duty of procedural fairness by failing to follow the NHCN Policy and Procedural Guidelines Manual, which required that a councillor first be suspended from his or her duties before the suspension of an honorarium could be considered - See paragraphs 65 to 73.

Indians, Inuit and Métis - Topic 6224

Government - Band councils (incl. chief and councillors) - Meetings - Validity - The applicant was an elected councillor of the Norway House Cree Nation (NHCN) - The respondents were the Chief and individually elected Band councillors - The applicant applied for judicial review of decisions of the Band Council and sought a declaration in the nature of quo warranto - The applicant sought a declaration that the elected Chief and all councillors had vacated their office because they had missed three consecutive duly constituted regularly scheduled meetings of the Band Council without being excused (art. 9.1(e) of the NHCN Election Procedures Act) - The Federal Court found that the Band councillors had not vacated their positions and a writ of quo warranto was not appropriate - The applicant was wrong in believing that just because a meeting was scheduled it was a duly constituted meeting - If the meeting did not actually take place, or took place but was not attended by a quorum of Council members, it could not be considered duly constituted as required by art. 9.1(e) - The court added that it found serious procedural flaws in the way Band Council meetings were cancelled - See paragraphs 29 to 44.

Indians, Inuit and Métis - Topic 6224

Government - Band councils (incl. chief and councillors) - Meetings - Validity - The Federal Court held that it was permissible for a sub-group of Band Council members to meet outside the formal confines of a Band Council meeting to discuss issues concerning the Band - However, the court stated that a distinction had to be drawn between that and what occurred in the case before it, i.e., it was not permissible for a sub-group of Band councillors to make decisions in secret and subsequently have those decisions rubber stamped at future Band Council meetings without regard to the Band Council guidelines or the provisions of the Indian Act - The court stated that in this case, the outcome of the ratification process was predetermined in many situations and inherently biased - See paragraphs 45 to 55.

Indians, Inuit and Métis - Topic 6231

Government - Band councils (incl. chief and councillors) - Remuneration of chief and councillors - [See Indians, Inuit and Métis - Topic 6222.2 ].

Indians, Inuit and Métis - Topic 6232

Government - Band councils (incl. chief and councillors) - Resolutions - On March 17, 2004, three members of a sub-group of the councillors of the Norway House Cree Nation (NHCN) signed a resolution directing their solicitor to pursue a claim against Godwin for misrepresentation and to seek an injunction against him - That resolution was submitted by the NHCN Band Council into the Manitoba Court of Queen's Bench as evidence of an official decision of the Band Council - However, the resolution was never ratified by the Band Council before it was submitted to the court - The resolution was eventually ratified at a duly convened special Council meeting on April 1, 2004 - The Federal Court held that the resolution should not have been submitted to the Manitoba court as evidence of an official decision of the Band Council because it had yet to be passed by the Band Council - Further, the resolution presented to be passed on April 1, 2004, was a predetermined matter - As such, the resolution which was allegedly passed on April 1, 2004, was void - See paragraphs 56 to 64.

Indians, Inuit and Métis - Topic 6238

Government - Band councils (incl. chief and councillors) - Judicial review - The applicant was an elected councillor of the Norway House Cree Nation (NHCN) - The respondents were the Chief and individually elected Band councillors - The applicant applied for judicial review of decisions of the Band Council and sought a declaration in the nature of quo warranto - The applicant had also sent a petition to the Minister of Indian and Northern Affairs requesting the immediate annulment of the NHCN Election Procedures Act and that the NHCN be reinstated under ss. 74-79 of the Indian Act - The Minister had denied that request - The respondents argued that the applicant should have applied to judicially review the Minister's decision as opposed to commencing an application for a writ of quo warranto - The Federal Court rejected the argument - The NHCN Band Council constituted a federal board under s. 18 of the Federal Courts Act - If the applicant wished to challenge the decisions of that board, it should do so in the Federal Court first as opposed to a petition to the Minister - See paragraphs 22 to 24.

Indians, Inuit and Métis - Topic 6238

Government - Band councils (incl. chief and councillors) - Judicial review - The applicant was an elected councillor of the Norway House Cree Nation (NHCN) - The respondents were the Chief and individually elected Band councillors - The applicant applied for judicial review of decisions of the Band Council and sought a declaration in the nature of quo warranto - A representative of the Minister of Indian and Northern Affairs had refused a request by the applicant to remedy disputes related to the failure of the NHCN Council to adhere to its own operating procedures and in relation to the applicant's salary and expense budget - The respondents argued that the applicant should have applied for judicial review of the decision of the Minister's representative as opposed to applying for a writ of quo warranto - The Federal Court rejected the argument - The NHCN Band Council constituted a federal board under s. 18 of the Federal Courts Act - If the applicant wished to challenge the decisions of the Band Council for failing to adhere to its own operating procedures, the correct course of action was not to request the assistance of the Minister, it was an application for judicial review in the Federal Court - See paragraphs 25 to 27.

Indians, Inuit and Métis - Topic 6238

Government - Band councils (incl. chief and councillors) - Judicial review - [See Administrative Law - Topic 5743 ].

Cases Noticed:

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para.11].

Long Lake Cree Nation v. Canada (Minister of Indian and Northern Affairs), [1995] F.C.J. No. 1020 (T.D.), refd to. [para. 12].

Assu et al. v. Chikite et al., [1998] B.C.T.C. Uned. H07; [1999] 1 C.N.L.R. 14 (S.C.), refd to. [para. 13].

Truehope Nutritional Support Ltd. et al. v. Canada (Attorney General) et al. (2004), 251 F.T.R. 155 (F.C.), refd to. [para. 16].

Rider v. Ear (1979), 103 D.L.R.(3d) 168 (Alta. T.D.), refd to. [para. 20].

Gabriel v. Canatonquin, [1978] 1 F.C. 124 (T.D.), refd to. [para. 20].

Wanderingspirit et al. v. Marie et al. (2003), 312 N.R. 385 (F.C.A.), refd to. [para. 20].

Salt River First Nation 195 (Council) v. Salt River First Nation 195 - see Wanderingspirit et al. v. Marie et al.

Charles et al. v. Cook et al. (1998), 140 F.T.R. 300 (T.D.), refd to. [para. 23].

Charles v. Semiahmoo Band Council - see Charles et al. v. Cook et al.

Louie v. Derrickson, [1993] B.C.J. No. 1338 (S.C.), refd to. [para. 50].

Leonard v. Gottfriedson (1980), 21 B.C.L.R. 326 (S.C.), refd to. [para. 50].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134; 75 D.L.R.(4th) 385, refd to. [para. 53].

Québec (Ministre de la Justice) v. Therrien, J., [2001] 2 S.C.R. 3; 270 N.R. 1, refd to. [para. 67].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 68].

Roseau River Anishinabe First Nation v. Atkinson et al. (2003), 228 F.T.R. 167 (T.D.), refd to. [para. 69].

Pelletier v. Canada (Attorney General) (2005), 275 F.T.R. 108; 2005 FC 1545, refd to. [para. 70].

Ross v. Mohawk Council of Kanesatake (2003), 232 F.T.R. 238 (T.D.), refd to. [para. 73].

Counsel:

Jackie Esmonde, for the applicant;

Norman Boudreau, for the respondent, Norway House Cree Nation;

Donald R. Knight, for the respondent, Eric Apetagon.

Solicitors of Record:

Roach, Schwartz & Associates, Toronto, Ontario, for the applicant;

Booth Dennehy LLP, Winnipeg, Manitoba, for the respondent, Norway House Cree Nation;

D.R. Knight Law Office, Winnipeg, Manitoba, for the respondent, Eric Apetagon.

This application was heard in part by videoconference on December 13, 2005, and January 17, 2006, at Winnipeg, Manitoba, by Blais, J., of the Federal Court, who delivered the following decision on February 16, 2006.