Orr v. Peerless Trout First Nation,

JudgeSmart
Neutral Citation2015 ABQB 5
Subject MatterACTIONS,CIVIL RIGHTS
Citation2015 ABQB 5,(2015), 608 A.R. 205 (QBM),608 AR 205,(2015), 608 AR 205 (QBM),608 A.R. 205
Date05 January 2015
CourtCourt of Queen's Bench of Alberta (Canada)

Orr v. Peerless Trout First Nation (2015), 608 A.R. 205 (QBM)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.147

Andrew Orr (applicant) v. Peerless Trout First Nation (respondent)

(1403 06359; 2015 ABQB 5)

Indexed As: Orr v. Peerless Trout First Nation

Alberta Court of Queen's Bench

Judicial District of Edmonton

Smart, Master

January 5, 2015.

Summary:

Orr, a member of the Peerless Trout First Nation (PTFN), commenced a lawsuit against the PTFN in which he claimed that money was owed for work done on a land claim. Section 9.3(c) of the PTFN's Customary Election Regulations prevented a PTFN member who had a civil suit against the PTFN from running for the positions of Chief or council member. Orr applied to have s. 9.3(c) declared unconstitutional.

A Master of the Alberta Court of Queen's Bench dismissed the application.

Actions - Topic 2

Definitions - Right of action - [See first Indians, Inuit and Métis - Topic 6255 ].

Civil Rights - Topic 104

Voting and other democratic rights - General - Application of s. 3 of Charter - [See fourth Indians, Inuit and Métis - Topic 6255 ].

Civil Rights - Topic 199

Voting and other democratic rights - Right to hold municipal or band office - Disqualification or removal - [See fourth Indians, Inuit and Métis - Topic 6255 ].

Civil Rights - Topic 908

Discrimination - General principles - Nondiscriminatory laws - [See fifth Indians, Inuit and Métis - Topic 6255 ].

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - [See second Indians, Inuit and Métis - Topic 6255 ].

Civil Rights - Topic 1850.2

Freedom of speech or expression - Limitations on - Restrictions on election candidates - [See second Indians, Inuit and Métis - Topic 6255 ].

Civil Rights - Topic 1863

Freedom of speech or expression - Denial of - What constitutes - [See second Indians, Inuit and Métis - Topic 6255 ].

Civil Rights - Topic 2158

Freedom of association - Limitations on - Restrictions on election candidates - [See third Indians, Inuit and Métis - Topic 6255 ].

Civil Rights - Topic 2204

Freedom of association - Denial of right of - What constitutes - [See third Indians, Inuit and Métis - Topic 6255 ].

Civil Rights - Topic 5502

Equality and protection of the law - General principles and definitions - Whether right to equality abridged - [See fifth Indians, Inuit and Métis - Topic 6255 ].

Civil Rights - Topic 5679.3

Equality rights - Particular cases - Restrictions on election candidates (incl. eligibility requirements) - [See fifth Indians, Inuit and Métis - Topic 6255 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous categories - [See fifth Indians, Inuit and Métis - Topic 6255 ].

Indians, Inuit and Métis - Topic 6243

Government - Elections - Candidates (incl. qualifications) - [See all Indians, Inuit and Métis - Topic 6255 ].

Indians, Inuit and Métis - Topic 6248

Government - Elections - Chief - Qualifications for office - [See all Indians, Inuit and Métis - Topic 6255 ].

Indians, Inuit and Métis - Topic 6255

Government - Elections - Election legislation - Section 9.3(c) of the Customary Election Regulations of the Peerless Trout First Nation (PTFN) prevented a PTFN member who had a civil suit against the PTFN from running for the positions of Chief or council member - Orr, a member of the PTFN, applied to have s. 9.3(c) declared unconstitutional - He argued that s. 9.3(c) was an attempt by government to prevent citizens from exercising their fundamental right to bring an action against it and was therefore ultra vires - A Master of the Alberta Court of Queen's Bench dismissed the application - The cases cited by Orr in support of this argument did not stand for the general proposition that Canadian governments could not enact legislation to prevent legal action against them by their citizens - Nor did they support the suggestion that there was a fundamental right to bring legal action against governments under or arising from the Constitution Act or Charter - See paragraphs 9 and 10.

Indians, Inuit and Métis - Topic 6255

Government - Elections - Election legislation - Section 9.3(c) of the Customary Election Regulations of the Peerless Trout First Nation (PTFN) prevented a PTFN member who had a civil suit against the PTFN from running for the positions of Chief or council member - Orr, a member of the PTFN, applied to have s. 9.3(c) declared unconstitutional on the basis that it violated the right to freedom of expression (Charter, s. 2(b)) - A Master of the Alberta Court of Queen's Bench dismissed the application - The protection in s. 2(b) was not without limits - It did not guarantee a method or location of expression or impose a positive obligation on the government of protection or of assistance to provide a method or location for expression - The exclusion from being a council member did not prevent an individual from voting or otherwise taking part in the election process, nor did it fetter the ability to make submissions to council, lobby its members, attend its meetings, and voice opinions - Section 9.3(c) did limit access to a platform, but it was not a statutory limitation on freedom of expression - See paragraphs 11 to 13.

Indians, Inuit and Métis - Topic 6255

Government - Elections - Election legislation - Section 9.3(c) of the Customary Election Regulations of the Peerless Trout First Nation (PTFN) prevented a PTFN member who had a civil suit against the PTFN from running for the positions of Chief or council member - Orr, a member of the PTFN, applied to have s. 9.3(c) declared unconstitutional on the basis that it violated the right to freedom of association (Charter, s. 2(d)) - A Master of the Alberta Court of Queen's Bench dismissed the application - The restriction on activity in s. 9.3(c) did not infringe on Orr's ability to establish, belong to and maintain an association - As a member of the PTFN, Orr and the collective of the members as electors determined who formed the PTFN council to pursue its common goals - See paragraphs 14 to 16.

Indians, Inuit and Métis - Topic 6255

Government - Elections - Election legislation - Section 9.3(c) of the Customary Election Regulations of the Peerless Trout First Nation (PTFN) prevented a PTFN member who had a civil suit against the PTFN from running for the positions of Chief or council member - Orr, a member of the PTFN, applied to have s. 9.3(c) declared unconstitutional on the basis that it violated the democratic rights of citizens (Charter, s. 3) - A Master of the Alberta Court of Queen's Bench dismissed the application - Section 3 did not apply to band council elections and therefore had no application to this case - See paragraph 17.

Indians, Inuit and Métis - Topic 6255

Government - Elections - Election legislation - Section 9.3(c) of the Customary Election Regulations of the Peerless Trout First Nation (PTFN) prevented a PTFN member who had a civil suit against the PTFN from running for the positions of Chief or council member - Orr, a member of the PTFN, applied to have s. 9.3(c) declared unconstitutional on the basis that it was discriminatory and violated s. 15(1) of the Charter - A Master of the Alberta Court of Queen's Bench dismissed the application - Having an unresolved civil suit against the PTFN was not a distinction that was analogous to any of the enumerated grounds protected by s. 15(1) - There was no suggestion of a contextual pre-existing disadvantage, vulnerability, stereotype or prejudice suffered by Orr that might support a finding of discrimination - The "trait" ascribed to Orr was not immutable; it was his choice to proceed with the action and it would end upon resolution of the civil suit - See paragraphs 18 to 22.

Cases Noticed:

Taypotat v. Taypotat et al. (2013), 447 N.R. 352; 2013 FCA 192, refd to. [para. 4].

Amax Potash Ltd. et al. v. Saskatchewan, [1977] 2 S.C.R. 576; 11 N.R. 222, refd to. [para. 9].

Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539; 72 N.R. 135; 32 D.L.R.(4th) 1, refd to. [para. 9].

Kingstreet Investments Ltd. et al. v. New Brunswick (Minister of Finance) et al., [2007] 1 S.C.R. 3; 355 N.R. 336; 309 N.B.R.(2d) 255; 799 A.P.R. 255; 2007 SCC 1, refd to. [para. 9].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 11].

Baier et al. v. Alberta, [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [para. 13].

Dunmore et al. v. Ontario (Attorney General) et al. (2001), 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [para. 14].

Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner) et al., [1990] 2 S.C.R. 367; 112 N.R. 269; 72 D.L.R.(4th) 1, refd to. [para. 15].

Crow v. Blood Indian Band Council et al. (1996), 107 F.T.R. 270 (T.D.), refd to. [para. 17].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [para. 17].

R. v. Kapp (J.M.) et al. (2008), 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 18].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 19].

Withler v. Canada (Attorney General) (2011), 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 20].

Taypotat v. Taypotat et al. (2012), 417 F.T.R. 160; 2012 FC 1036, refd to. [para. 21].

Counsel:

Priscilla Kennedy (Davis LLP), for the applicant;

David Rolf, Q.C. (Parlee McLaws LLP), for the respondent.

This application was heard before Smart, Master, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on January 5, 2015.

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2 practice notes
  • Orr et al. v. Peerless Trout First Nation, 2015 FC 1053
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • 14. Juli 2015
    ...- Elections - Election legislation - [See Indians, Inuit and Métis - Topic 6243 ]. Cases Noticed: Orr v. Peerless Trout First Nation (2015), 608 A.R. 205; 2015 ABQB 5 (Master), refd to. [para. 5]. Taypotat v. Taypotat et al. (2013), 447 N.R. 352 ; 2013 FCA 192 , refd to. [para. 6]. Baie......
  • Redfern v. Qikiqtani Inuit Association, 2018 NUCJ 13
    • Canada
    • Nunavut Nunavut Court of Justice (Canada)
    • 9. Mai 2018
    ...of historical, social, legal or political disadvantage as those enumerated in s. 15. [63] In Orr v Peerless Trout First Nation, 2015 ABQB 5, 608 AR 205 [Orr], the Court considered the validity of a provision in the Customary Election Regulations which prohibited a person who has a civil sui......
2 cases
  • Orr et al. v. Peerless Trout First Nation, 2015 FC 1053
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • 14. Juli 2015
    ...- Elections - Election legislation - [See Indians, Inuit and Métis - Topic 6243 ]. Cases Noticed: Orr v. Peerless Trout First Nation (2015), 608 A.R. 205; 2015 ABQB 5 (Master), refd to. [para. 5]. Taypotat v. Taypotat et al. (2013), 447 N.R. 352 ; 2013 FCA 192 , refd to. [para. 6]. Baie......
  • Redfern v. Qikiqtani Inuit Association, 2018 NUCJ 13
    • Canada
    • Nunavut Nunavut Court of Justice (Canada)
    • 9. Mai 2018
    ...of historical, social, legal or political disadvantage as those enumerated in s. 15. [63] In Orr v Peerless Trout First Nation, 2015 ABQB 5, 608 AR 205 [Orr], the Court considered the validity of a provision in the Customary Election Regulations which prohibited a person who has a civil sui......

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