Date: 19980618
Docket: T-1121-98
BETWEEN:
LISE FORTIN
- and -
DIANE BERNARD
- and -
RENÉ O"BOMSAWIN
Plaintiffs
- and -
THE BAND COUNCIL OF THE ABÉNAKIS DE WÔLINAK
- and -
BERNARD ROSS
- and -
THE HONOURABLE JANE STEWART
Defendants
REASONS FOR ORDER
(Delivered from the bench
at Montréal, Quebec on June 11, 1998)
RICHARD J.:
[1] On June 2, 1998, the plaintiffs filed a notice of application for a declaratory order seeking:
| a) a declaration that the Band List of the Abénakis de Wôlinak Indian band, prepared on April 24, 1998 by Lise Fortin, the Band Registrar and registration officer, for the band council election scheduled for June 14, 1998, shall and should be used to create the list of members eligible to vote on June 14, 1998 in the election of the Wôlinak band council; |
| b) a declaration that the persons named on the April 24, 1998 list prepared by Lise Fortin, Registrar, who are members of the Landry family are not and will not be entitled to vote in the election since they are not status Indians registered in the Indian Register and were denied membership in the Abénakis de Wôlinak at a special general meeting held on April 4, 1998. |
[2] By motion heard at Montréal on June 11, 1998, the plaintiffs seek an interim order under section 18.2 of the Federal Court Act. They ask that the band council election scheduled for June 14, 1998 be suspended until the Court disposes of their notice of application for a declaratory order.
[3] In an affidavit dated June 9, 1998, Denis Bélanger, regional manager of Funding Arrangements, Funding Services, Department of Indian and Northern Affairs Canada, states that should it prove impossible to hold an election on or before June 16, 1998"the last day of the present council"s mandate"the Department will appoint a special administrator pursuant to the Department"s general authority under section 3 of the Indian Act and clause CG4 at Appendix D of the funding arrangement, a copy of which is attached as Exhibit M-1 to the affidavit.
[4] The issue is thus whether the plaintiffs should be granted the interim relief sought.
[5] In Conseil du Crabe des Neiges Inc. v. Canada (A.G.) (1996), 116 F.T.R. 8, I examined the tests developed in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, for granting the relief sought.
[6] Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Second, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, 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.
[7] There are no specific requirements that must be met to satisfy the test of a serious question to be tried. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case.
[8] The second test consists in deciding whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm. The harm that might be suffered by the respondent, should the relief sought be granted, has been considered by some courts at this stage. However, this is more appropriately dealt with in the third part of the analysis. Any alleged harm to the public interest should also be considered at that stage.
[9] The third test to be applied in any application for interlocutory relief is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits. Where the constitutionality of legislation or, as in the case at bar, the authority of a law enforcement agency is in issue, the public interest must be considered in assessing the balance of inconvenience.
[10] It should be noted that this is an exceptional measure and that the burden is on the applicants to prove that these three tests have been met.
A serious question to be tried
[11] The defendants submit that there is no serious question to be tried in the application as presented.
[12] However, in view of the threshold of this first test, after a preliminary assessment of the merits of the case, I accept that there is a serious question to be tried.
Irreparable harm
[13] The plaintiffs" motion is supported by the affidavit of Diane Bernard dated May 28, 1998. She is the Chief of the band council of the Abénakis de Wôlinak. At paragraph 4, she states:
| [TRANSLATION] Holding elections on the Wôlinak reserve using a voters" list other than the one prepared by the Registrar would result in serious harm and illegality in the Wôlinak community and would cause considerable discord in that community since people who are not entitled to vote and are not status Indians would then have been allowed to vote in the band council election; |
[14] Counsel for the plaintiffs submits that the appeal procedures provided by sections 5 and 12 of the Indian Band Election Regulations, C.R.C., 1978, c. 952, are not effective.
[15] On the basis of the case before me, the plaintiffs have not established that they would suffer irreparable harm if relief were refused.
Balance of inconvenience and public interest
[16] It is not disputed that the end of the present council"s mandate is June 16, 1998 and the elections are scheduled for June 14, 1998. What is disputed is the eligibility of certain persons whose names appear on the voters" list.
[17] The band council shall be selected by an election to be held in accordance with the Indian Act.
[18] Under the circumstances, I do not consider it to be in the public interest to suspend the elections and deprive all the voters of their right to vote.
[19] The plaintiffs" motion to suspend the band council election scheduled for June 14, 1998, is dismissed.
John D. Richard
Judge
Ottawa, Ontario
June 18, 1998
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1121-98
STYLE OF CAUSE: LISE FORTIN - and - DIANE BERNARD - and - RENÉ
O"BOMSAWIN
- and -
BAND COUNCIL OF THE ABÉNAKIS DE WÔLINAK
- and - BERNARD ROSS
- and - THE HONOURABLE JANE STEWART
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 11, 1998
REASONS FOR ORDER BY THE HONOURABLE MR. JUSTICE RICHARD DELIVERED FROM THE BENCH
DATED: June 18, 1998
APPEARANCES:
Claude Carignan For the plaintiffs
Paul Dionne For the defendants
David Schulze
Alain Lafontaine For the third party
SOLICITORS OF RECORD:
Claude Carignan For the plaintiffs
St-Eustache, Quebec
Hutchins, Soroka & Dionne For the defendants
Montréal, Quebec
George Thomson For the third party
Deputy Attorney General of Canada