Martselos v. Salt River Nation #195, (2008) 411 N.R. 1 (FCA)

• Judge: Linden, Sharlow and Trudel, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 18, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 411 N.R. 1 (FCA);2008 FCA 221

Martselos v. Salt River Nation #195 (2008), 411 N.R. 1 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] N.R. TBEd. DE.014

Salt River Nation #195 also known as Salt River Indian Band #759, Salt River First Nation Council and Councillors Chris Bird, Toni Heron, Sonny McDonald and Mike Beaver (appellants) v. Frieda Martselos (respondent)

(A-44-08; 2008 FCA 221; 2008 CAF 221)

Indexed As: Martselos v. Salt River Nation #195

Federal Court of Appeal

Linden, Sharlow and Trudel, JJ.A.

June 19, 2008.

Summary:

On April 30, 2007, Martselos won a by-election and was elected Chief of the Salt River First Nation #195 (SRFN). On May 7, 2007, four of the five elected members of the Council (the appellants) adopted a Band Council Resolution (BCR) removing Martselos from her office. Martselos sought to have the BCR quashed pursuant to s. 18.1(3) of the Federal Courts Act. In response, the appellants requested a writ of Quo Warranto affirming their decision to remove Martselos as the newly elected Chief of SRFN.

The Federal Court, in a decision reported at [2008] F.T.R. Uned. 15, quashed the BCR removing Martselos from the office of Chief and dismissed the application for a writ of Quo Warranto. The appellants appealed. Martselos cross-appealed from the court's decision not to award her costs.

The Federal Court of Appeal dismissed the appeal and the cross-appeal.

Indians, Inuit and Métis - Topic 6222.2

Government - Band councils (incl. chief and councillors) - Duty of procedural fairness - [See Indians, Inuit and Métis - Topic 6224 ].

Indians, Inuit and Métis - Topic 6224

Government - Band councils (incl. chief and councillors) - Meetings - Validity - On April 30, 2007, Martselos won a by-election and was elected Chief of the Salt River First Nation #195 (SRFN) - On May 7, 2007, four of the five elected members of the Council (the appellants) adopted a Band Council Resolution (BCR) removing Martselos from her office - Beaudry, J., granted Martselo's application to quash the BCR - The appellants appealed - One issue was whether the convening and holding of the May 7, 2007 meeting was procedurally fair - On May 4, 2007, the appellants had signed a document entitled "Notice to Frieda Martselos, Chief Elect" by which she was advised that Council was "considering her immediate removal from the office of Chief Elect on the grounds set out in the articles of impeachment below" - Martselos refused delivery of the document and later refused to open the envelope - The Federal Court of Appeal stated that willful blindness estopped Martselos from pleading lack of notice - Had she opened the envelope, she would have been accurately informed of the Council's intentions - The court also rejected Martselo's argument that the meeting was not properly convened because she had not prepared an agenda, pursuant to paragraph 3(a) of the SRFN election code - The purpose of the agenda was to give advance notice to the Councillors to allow them to prepare - That was exactly what the notice enclosed in the unopened envelope purported to achieve - The court also disagreed with Martselo's argument that as a logical consequence of paragraph 3(a) of the code, which imposed on the Chief the duty to prepare the agenda, only the Chief could call a meeting of the Council - See paragraphs 34 to 39.

Indians, Inuit and Métis - Topic 6226

Government - Band councils (incl. chief and councillors) - Removal - Validity - [See Indians, Inuit and Métis - Topic 6232 ].

Indians, Inuit and Métis - Topic 6232

Government - Band councils (incl. chief and councillors) - Resolutions - On April 30, 2007, Martselos won a by-election and was elected Chief of the Salt River First Nation #195 (SRFN) - On May 7, 2007, four of the five elected members of the Council (the appellants) adopted a Band Council Resolution (BCR) removing Martselos from her office - The BCR listed 21 grounds of removal - Martselos applied to quash the BCR - Beaudry, J., quashed the BCR removing the Chief from office - The appellants appealed - The Federal Court of Appeal dismissed the appeal - The court stated that "While I recognize that deference shall be afforded to findings of facts of the Band's Council, it must, nonetheless, operate according to the rule of law and for the protection of the Band ... Governing in an orderly fashion is part of the rule of law. This implies that when the Council exercises its authority, it must explain to the persons directly affected by its decisions, as well as to the Band members to whom it answers as an elected body, the rationale behind those decisions. ... The BCR is completely silent on the Council's decision-making process. Neither the Chief, nor the membership knows from the BCR, how the Council determined what the accepted facts were, as opposed to the alleged facts and on what basis it chose the remedy it did. ... I therefore conclude that the Council's decision is unreasonable as it lacks justification, transparency and intelligibility" - See paragraphs 40 to 48.

Indians, Inuit and Métis - Topic 6238

Government - Band councils (incl. chief and councillors) - Judicial review - Four of the five Council members of the Salt River First Nation #195 (SRFN) (the appellants) adopted a Band Council Resolution (BCR) removing Martselos from her office as Chief of the SRFN - Beaudry, J. (the judge), granted Martselo's application to quash the BCR - The appellants appealed - The Federal Court of Appeal stated that "the question of whether there were grounds for removal is a mixed question of fact and law. It is not a pure question of jurisdiction as found by the Judge ... Based on the standard of review analysis ... using the four well-known factors, I conclude that the Council's interpretation of the [SRFN election] code attracts a standard of correctness while its examination of the facts and action taken pursuant to it call for a review on a standard of reasonableness" - See paragraphs 24 to 32.

Practice - Topic 7021

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Conduct - [See Practice - Topic 7470.5 ].

Practice - Topic 7470.5

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Public interest or test cases - Four of the five Council members of the Salt River First Nation #195 (SRFN) (the appellants) adopted a Band Council Resolution (BCR) removing Martselos from her office as Chief of the SRFN - Beaudry, J., granted Martselo's application to quash the BCR - The appellants appealed - Martselos cross-appealed from the court's decision not to award her costs - The Federal Court of Appeal dismissed the appeal and the cross-appeal - With respect to the cross-appeal, the court stated that "The Chief (appellant on cross-appeal) contends that Beaudry, J., erred in ignoring her claim for costs on a solicitor-and-client basis, which she sought arguing that the questions raised in her application were of 'critical public importance' for the members of the SRFN. Alternatively, she submits that as a result of her success in the proceedings below she is, at least, entitled to costs on a party to party basis. I disagree. ... The Judge noted that the Chief had herself contributed some degree of 'confusion, tension, and stress' to the situation at hand and declined to make an award of costs in her favour in spite of her success on her application ... Having so decided, it was unnecessary, for Beaudry, J., to examine the Chief's claim for costs on a solicitor-and-client basis. The Judge committed no error in concluding as he did" - Martselos also renewed her claim for costs on a solicitor-and-client basis with respect to the appeal and cross-appeal - The court stated that "An award of costs on that scale is the exception rather than the rule ... Moreover, the Chief did not show that this case raised a point of public interest and importance. Both the nature of the litigation and the conduct of the Chief, as described by the Judge, militate against the conclusion sought" - See paragraphs 51 to 55.

Cases Noticed:

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

Wanderingspirit et al. v. Marie et al. (2003), 235 F.T.R. 106; 2003 FCT 670, affd. (2003), 312 N.R. 385; 2003 FCA 385, refd to. [para. 3].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 24].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 24].

Nagalingam v. Canada (Minister of Citizenship and Immigration) et al. (2008), 377 N.R. 151; 2008 FCA 153, refd to. [para. 24].

Canada (Attorney General) v. Clegg (2008), 380 N.R. 275; 2008 FCA 189, refd to. [para. 26].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 26].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 28].

Vollant v. Sioui et al. (2006), 295 F.T.R. 48; 2006 FC 487, refd to. [para. 30].

Giroux v. Swan River First Nation et al. (2006), 288 F.T.R. 55; 2006 FC 285, revd. (2007), 361 N.R. 360; 2007 FCA 108, refd to. [para. 30].

Ballantyne v. Grand Rapids First Nation et al. (2000), 197 F.T.R. 184 (T.D.), refd to. [para. 30].

Okeymow v. Samson Cree Nation et al. (2003), 235 F.T.R. 87; 2003 FCT 737, refd to. [para. 30].

Long Lake Cree Nation v. Canada (Minister of Indian and Northern Affairs), [1995] F.C.J. No. 1020 (T.D.), refd to. [para. 42].

Qualicum First Nation v. Recalma-Clutesi - see Cassidy et al. v. Recalma-Clutesi et al.

Cassidy et al. v. Recalma-Clutesi et al. (2006), 296 F.T.R. 126; 2006 FC 854, refd to. [para. 42].

Little Sisters Book and Art Emporium et al. v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 53].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 54].

Counsel:

Christopher Harvey, Q.C., and Christopher Watson, for the appellants;

David C. Rolf and K. Colleen Verville, for the respondent.

Solicitors of Record:

MacKenzie Fujisawa LLP, Vancouver, B.C., for the appellants;

Parlee McLaws LLP, Vancouver, B.C., for the respondent.

This appeal and cross-appeal were heard on June 18, 2008, at Vancouver, B.C., before Linden, Sharlow and Trudel, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Trudel, J.A., on June 19, 2008.