Alton Natural Gas Storage Inc v Poulette, 2019 NSSC 94

Permanent injunction order granted. The Applicant company may make a place on its lands where protestors could gather and be seen by the public. The Respondents and their belongings are confined to this permitted area.

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Alton Natural Gas Storage Inc [“Alton”] was seeking a permanent injunction against Respondents who oppose Alton’s plan to use hydro technology to construct a vast underground cavern system. Discharge construction water would flow as a result into the Sipekne’katik River [“River”]. The Mi’kmaq people have used the waterway for over 4,000 years. The Sipekne’katik First Nation and other First Nations have significant interests in the River. Alton was proposing to construct a system of caverns in the land beside the River to store natural gas and had acquired over 40 acres of land bordering the River. To do so, Alton planned on creating the caverns by pumping the River water into salt deposits underground. Alton expressed that the brine was to be injected into a mixing channel adjacent to the River, diffused, diluted, and returned to the River at a salinity level within the natural range.

Numerous First Nations, however, expressed their fears that the brine would pollute the River. A camp was built near the front entrance to Alton’s land and its guardhouse. Alton alleged that the camp prevented the heavy equipment needed to create a pump system. Protestors continued to impede access to Alton’s property at various times after 2016. The court determined that for Alton to receive a motion for an interlocutory injunction it must show three things: 1) that its claim raises a serious issue to be determined on the hearing of the application for a final injunction; 2) it will suffer irreparable harm if there is no temporary injunction before the hearing of the application; and 3) the balance of inconvenience must favour Alton over the Respondents (RJR MacDonald v Canada, [1995] 3 SCR 199 [“RJR”]).

Alton proved title and occupation to the land along the River where the protestors were camped and had established a serious issue to be tried. Evidence of threats from Youtube was sufficient to establish irreparable harm (RJR). Assessing the balance of convenience involved “determining which of the parties will suffer the greater harm from the granting or refusing of an interlocutory injunction, pending trial” (Maxwell Properties Ltd V Mosaik Property Management Ltd, 2017 NSCA 76).  The Court expected something more than an assertion of Aboriginal or treaty rights to establish a balance of inconvenience favouring the Respondents. Therefore, the balance of convenience was determined to be with Alton.

R v Luke, 2019 ONCJ 514

Conditional discharge granted. In this matter involving an Indigenous first time female offender, the mandatory minimum sentence in s 255(1) is inconsistent with s 12 of the Charter.

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The accused was arrested for impaired driving after she took her mother’s car without consent. She assumed control of the vehicle in an extremely intoxicated state, out of reaction to her boyfriend’s infidelity with her own cousin. A monetary penalty in response to the creation of a serious risk, such as with impaired driving, will not be a grossly disproportionate punishment. The central issue is whether the criminal record which necessarily flows from the imposition of that mandatory minimum fine results in a s 12 Charter violation for an offender, such as with accused in this matter. The result of the mandatory minimum sentence demanded by s 255(1) of the Criminal Code [“CC”], the discretion afforded by s 730 of the CC was unavailable. As well, when Parliament enacted s 255(5), Ontario never opted into the application of a discharge provision.

A discharge should only be granted if the court “considers it to be in the best interests of the accused and not contrary to the public interest”. This must be answered having regard to the accused’s moral blameworthiness and to the gravity of the offence. As well, all sentencing determinations “must respect the fundamental principle of proportionality”. Taking into account s 718.2(e), a different method of analysis must also be used when determining a fit sentence for Aboriginal offenders.

Denunciation is a key consideration in drinking and driving offences, especially where the offence was motivated by extreme emotional turmoil such as in this matter. Deterrence of like-minded potential offenders seems futile. It would be more effective if the court imposed a driving prohibition in addition to the two years’ probation. The accused accepted responsibility for the offence by pleading guilty, within weeks began addressing the alcohol addiction, met with a counsellor and a registered psychotherapist, and has the intent of completing high school and becoming a youth worker. In holding it would not be contrary to the public interest to grant this specific accused a curative treatment discharge, it would also be a just sanction given the accused is an Aboriginal offender.

The mandatory minimum sentence in s 255(1) prevented giving effect to several important factors such as: 1) the accused is a first offender with strong rehabilitative potential; 2) the offence was largely motivated by alcohol addiction and there is good reason to believe continued treatment will effectively deal with that issue; and 3) the accused’s offence was connected to their Aboriginal background which also provides for rehabilitative and restorative sentencing options. There is recognition of the stigmatization, stereotyping, and further challenge to the Aboriginal accused in finding future educational and employment opportunities. S 255(1) was stated to result in at least some grossly disproportionate sentences and could not be saved under s1. A Provincial Court’s power to determine constitutional validity of a CC provision is limited to the case that is heard, therefore no formal declaration was made for s 255(1). In this case, the accused was granted a curative treatment discharge for the reasons above.

Bird v Blott, 2019 ABQB 764

Application for certification granted with costs. A class action will go forward to sue an Albertan lawyer who was disbarred for his misconduct in managing IRS files.

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This is an application by the Plaintiffs for certification of a class action pursuant to s 5 of the Class Proceedings Act [“CPA”]. It concerns the alleged mishandling of approximately 5600 residential school claims by former Calgary lawyer, David Blott, on behalf of Aboriginal clients who were signed up to retain Blott by the form filling efforts of Honour Walk Ltd. Mr. Blott was reported to have received 21 million dollars for his firm’s services. The absolute failure of Blott to provide individualized legal services to the Plaintiffs in the Residential School Class Action is well documented in judicial decisions (Fontaine v Canada (AG), 2012 BCSC 839 and 2012 BCSC 1671). He had set up his practice in such a way as to maximize profit and minimize the effort required.

In order for the Court to certify these proceedings, it must be satisfied that the conditions set out in the CPA have been met, but be construed generously. An overly restrictive approach must be avoided in order to realize the benefits, such as judicial economy, access to justice and behavior modification and so on, by those who cause harm at the certification stage (Hollick v Metropolitan Toronto (Municipality), 2001 SCC 68) [“Hollick”]; Cloud v Canada (AG), (2004) 73 OR (3d) 401 (ONCA)).

The statement of claim disclosed a cause of action. The next condition for certification required an identifiable class that should be defined independently of the merits of the action (Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46). This definition included those who retained the Blott Defendants arising out of the residential school experience and should not be unnecessarily broad (Hollick). The way in which the Blott Defendants arranged Mr. Blott’s practice essentially ruled out the possibility of a solicitor and client relationship, which Mr. Blott’s clients were entitled to expect. The Court is satisfied that there is an identifiable class.

There is a common issue among this identifiable class of an experience of being largely ignored and exploited. It turned what was supposed to provide reconciliation and closure into another traumatic experience. It would appear that most of Mr. Blott’s clients will have had very similar complaints and circumstances. The fact that some of them may have been affected differently does not mean there are no common issues. The Court is satisfied that the condition of a common issue for certification has been met.

Thousands of innocent people retained Blott to seek justice for them, as part of a class of residential school attendees. This class of people are vulnerable and for the most part, impecunious. As with the resolving of the residential school claims through a class proceeding, it is hard to see how justice can ever be obtained for the Blott clients other than through another class proceeding. It is important to proceed with their claims as a class because, like the residential school claims, it will be useful to establish standards and a basis for comparison when one does analyze the quantum of each claim.

The law firm acting on behalf of the Plaintiff class is doing this on a pro-bono basis, and there can be no doubt that the efficiency of dealing with all the claims in this way is far superior to numerous individual claims. The Court is satisfied that a class proceeding is the preferable procedure for this action.

Wakeling v Debassige, 2019 ONSC 4058

Variation to a divorce order granted in order for the parties’ children to more fully participate in Indigenous events.

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A member of the M’Chigeeng First Nation, sought to change the parenting schedule for his two children to support their connection with their First Nation’s heritage, communities, and Ojibwe language. The mother of the children is not First Nation. The children had primarily resided with their mother. The father sought to have the children primarily live with him in another province and have them attend school there as he felt their current school schedule interfered with their ability to participate in Indigenous events. The mother opposed the claims on the basis that she had been supportive of the children’s connection to their heritage, and there had not been a change in circumstances. She also sought an order preventing the father from bringing further motions to vary without leave of the court as she argued that he had abused the court system by bringing multiple variation proceedings.

Before a court may vary the parenting provisions of an order, the court must be satisfied that there has been a material change in the conditions, means, needs, or other circumstances of the child occurring since the making of the last variation order made in respect of that order (Divorce Act; Gordon v Goertz, [1996] 2 SCR 27 [“Gordon”]). A material change in circumstances is one that: 1) amounts to a change in the conditions, means, needs, or other circumstances of the child and/or the ability of the parents to meet the needs of the child; 2) materially affects the child; and 3) could not have been reasonably contemplated at the time of the last variation order.

On a balance of probabilities, the onus to prove that there has been a material change is on the party seeking the change. If that party is unable to show the existence of a material change, the inquiry can go no further. As well, evidence on a motion seeking a final order should meet the same tests for admissibility as apply at trial. When making a variation order after finding there had been a material change, the court must then take into consideration only the best interests of the children as determined by reference to that change (Divorce Act; Gordon).

After viewing all the factors, this Court determined that the only material change was relating to the National Aboriginal Day and powwows, therefore a variation order was necessary for that factor. The mother’s request to have an order granted to prevent the father from bringing further motions to vary without permission of the court, was dismissed. The mother had not provided evidence of previous costs orders against the father, nor that he had failed to pay such costs in the past.

R v Stride-Drew, 2019 NLSC 147

A first offender’s Aboriginal status triggered a Gladue analysis. She was sentenced to 33 months imprisonment after pleading guilty to sexual interference involving a 14 year old child.

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The Offender pled guilty to sexual interference contrary to s 151 of the Criminal Code [“CC”]. She was 22 years of age and older than the 14 year old victim by 8 years. In this matter, the issue is the determination of a fit and just sentence for the Offender considering the circumstances of this offence. The Crown submits that a term of imprisonment of three years with mandatory ancillary orders is appropriate and is at the low end of a sentence for sexual intercourse with a child under the age of 16 years. The Defence requests a term of imprisonment of two years plus a day be imposed on the basis of Gladue considerations support a sentence outside the range (R v Gladue, [1999] 2 CNLR 252).

S 718.01 of the CC states that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, primary consideration should be given to the objectives of denunciation and deterrence of such conduct. S 718.2 (ii.1) requires that the abuse of a person under the age of 18 years be deemed an aggravating circumstance. S 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality. There is also the instruction to consider all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention paid to the circumstances of Aboriginal offenders.

The extent of the sexual interference on the victim is very grave and on the high end of the scale. The victim’s unwillingness and distress should have been obvious to the Offender. She took full advantage of the opportunity to sexually abuse the child when she entered the room. The traumatic and long-lasting effects of sexual abuse on children are well known. The victim was only 14 years old, was very upset during the incident which was partially witnessed by two persons who came to his assistance. The victim was also required to testify at a Preliminary Inquiry.

The mitigating factors for the offender is that she is a youthful first offender, she entered a guilty plea to the charge and has expressed remorse. The offender was not in a position of trust with respect to the victim. There was no violence on the part of the offender to perpetrate the offence or evidence of planning to have sexual intercourse with the victim.

The offender is Mi’kmaq and member of the Miawpukek First Nations Band of Conne River. She has a positive attitude towards employment and is very receptive to counselling. She agrees that a Federal term of incarceration would be in her best interests given the available programs. The offender’s upbringing was extremely unstable, as she endured physical violence and mental abuse for many years. She has physical and mental health problems requiring daily medication. While this is not offered at all as an excuse to sexually abuse a child, it does give an understanding of this young Aboriginal woman, how it has impacted her and the offence as Gladue requires. The Court believes her prospects for rehabilitation are positive.

If not for her high degree of intoxication on the date of the offence, the Offender may not have committed this offence, but the facts are very grave. Denunciation and deterrence remain the primary considerations. Other than the Gladue factors, this is not a case where a sentence would be on the low end of the scale. The sentence would be three and a half years imprisonment as imposed in R v Barrett, 2012 NLCA 46. Given the compelling pre-sentence report and a thorough Gladue analysis, that sentence has been reduced to a sentence of 33 months.

R v Abram, 2019 ONSC 3383

Application granted. The Applicant is entitled to a hearing before a jury to request that his parole ineligibility period be reduced.

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The Applicant was convicted of the first-degree murder of his 17-month-old stepson in 2005. He received the mandatory sentence of life imprisonment with no parole eligibility for 25 years. Having served more than 15 years of his sentence, the Applicant applied for a faint hope hearing where it will be asked that his parole ineligibility period be reduced. S 745.61 of the Criminal Code requires that such applications be screened for merit before a jury hearing is granted.

The primary purpose of the s 745 hearing is to call attention to changes which have occurred in the applicant’s situation that might justify imposing a less harsh penalty upon the applicant (R v Swietlinksi, [1994] 3 SCR 481). The Applicant was given the benefit of the lower screening standard, meaning, whether there is a “reasonable prospect of success” due to the uncertainty in the law, as well as this being the standard imposed at the time the offence was committed. If success falls within a range of reasonable outcomes, it qualifies as a reasonable prospect of success. Further, Gladue bears on whether the Applicant should have the right to make an application before a jury which applies in this case.

This Court considered victim impact statements, the community impact, the Applicant’s character and conduct in the institution, as well as his remorse/acceptance of responsibility. Many correctional records reported that the Applicant had a deep understanding of what he did, and a compelling need to make amends by becoming a better person. His community was eager to have him return. The most striking features of this case is the level of unqualified support offered by correctional officials towards the Applicant.

The Crown attempted to argue that the Applicant failed to accept full responsibility because he was unwilling to enrol in treatment programs aimed at sex offenders. The Court stated that the absence of sexual motivation did not affect the characterization of the crime but bears on whether the Applicant requires treatment as a sex offender. Because professionals within the correctional system had concluded there is no need for such treatment, the Applicant cannot be faulted for abiding by the recommendations of institutional officials. The Crown also attempted to argue a comment made in a psychological assessment 12 years ago showed his lack of remorse. The comments made then do not reflect the applicant’s current conceptualization of his crime. The prospect of success is therefore reasonable when one considers the Applicant’s present character, institutional history, adherence to Indigenous traditions, and his ongoing commitment to personal growth.

Anderson v Alberta (AG), 2019 ABQB 746

Advanced costs granted. It would be manifestly unjust to either compel the First Nation to abandon its claim or to force it into destitution in order to bring the claim forward.

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This is an application by the Beaver Lake Cree Nation [“BLCN”] for an order of advanced costs to allow them to proceed with their Statement of Claim filed 10 years ago against Canada and Alberta. The litigation deals with the cumulative effects of the “taking up” of land in the Beaver Lake traditional territory and the damage done thereby on the way of life of the members of the BLCN. An advanced costs decision is ultimately discretionary and there is a high threshold of accountability for using public funds through courts rather than through the legislature or the government bureaucracy.

The Court may award interim costs when a party demonstrates impecuniosity, a meritorious case, and issues of public importance (BC (Minister of Forests) v Okanagan Indian Band, [2004] 1 CNLR 7 [“Okanagan”]; Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2 [“Little Sisters”]). Even if all the criteria are met, there is no right to interim costs. The Court has discretion whether to grant an order for interim costs, or consider other methods to facilitate the hearing of the case depending on its assessment of the individual circumstances of the case.

Impecuniosity means that it would be impossible to proceed with the litigation absent the order of costs. The threshold for proof of impecuniosity is high and it is not to be used as a “smart litigation strategy (Little Sisters). A party seeking such an extraordinary remedy is required to make full and transparent disclosure of its assets, expenses, ability to raise or borrow monies, and ability to obtain counsel, and the likelihood of a contingency fee agreement and an estimate of the costs it requires to fund the litigation (LC v Alberta, 2017 ABQB 93).

The BLCN is an impoverished community with a number of pressing infrastructural and social needs. It has only recently started to turn the corner financially as they accumulate some funds from various sources. The vast majority of the BLCN’s financial assets are not available to fund this litigation. Funding this litigation by the BLCN must be weighed against the community’s other pressing needs. The BLCN has funded this litigation for 10 years through its own sources, it now cannot fund the litigation at the rate required to bring it to trial.

The Court is satisfied that all three elements of the Okanagan/Little Sisters test have been met. This case is sufficiently extraordinary that the Court should exercise its discretion to grant the application. If the BLCN receives compensation or otherwise receives a windfall, then this order shall be revisited. Transparency is required from the parties.

Campbell v Vancouver Police Board, 2019 BCHRT 12

Intervenor status granted. A First Nations woman must still prove the facts of her human rights complaint against the Vancouver Police Board at the hearing.

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Deborah Campbell, a First Nations woman, filed a complaint with the Human Rights Tribunal [“Tribunal”] under s 8 of the Human Rights Code [“Code”]. Ms. Campbell felt that the Vancouver police mistreated her when arresting her son because of her visible Indigenous heritage. The Vancouver Police Board [“VPB”] denied the allegation of mistreatment and discrimination. The Union of BC Indian Chiefs [“UBCIC”] applied to intervene in the complaint under s 22.1 of the Code. The UBCIC wanted to provide the Tribunal with context surrounding the relationship between the BC police and Indigenous people as that would allow the Tribunal to gain a better understanding of the complaint. Campbell supported the intervention, and the VPB opposed it in concern that it would expand the scope of the complaint and remove the litigation away from the parties.

The Tribunal has broad discretion to allow a person or group to intervene in a complaint, and to specify the terms of that intervention (Hall v BC (Minister of Environment (No 4)), 2008 BCHRT 437). That discretion is conferred by s 22.1 of the Code. When considering an application to intervene, the Tribunal will balance the likelihood of the intervenor in making a “useful contribution” to the resolution of the complaint against the risk of prejudice to the parties, and the risk that the intervenor will “take the litigation away” from the parties (Hughson v Town of Oliver, 2000 BCHRT 11).

The Tribunal recognized that Indigenous people are disproportionately underrepresented in complaints that are brought before it. There are deep-rooted prejudicial implications of colonialism that continually impact Indigenous people based on their race and ancestry. Evidence of social context, however, was deemed to be inconclusive on its own when determining if discrimination has occurred (Québec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center), 2015 SCC 39). At the hearing, the burden of proof remained on Ms. Campbell to prove the facts of her complaint. Merely establishing a context of “difficult” or “harmful” relationships between the VPD and Indigenous people would be insufficient on its own to determine that VPD violated Ms. Campbell’s rights under s 8 of the Code. The Tribunal considered these factors and granted UBCIC the opportunity to make oral and written submissions at the opening and closing of the hearing. If UBCIC wanted to introduce its own expert advice at the hearing, it was responsible for applying to do so.

R v Napope, 2019 SKPC 23

The nature of a breach by the accused of a s 810.2 recognizance does not put the public at risk. It is the Court’s view that that his release back into the community is important if he is to make any progress on the restorative path as contemplated by Ipeelee and Gladue.

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The accused pled guilty to one breach of a recognizance issued under s 810.2, contrary to s 811 of the Criminal Code. The Crown sought a 15 month jail sentence minus his remand at enhanced credit from the time of his arrest. Defence sought a two month jail sentence minus his remand at enhanced credit. The accused is sentenced to time served of 44 days actual jail time but with credit for 66 days at enhanced credit.

In this matter, the accused was released on an 18 month s 810.2 recognizance and was required to register to and report in person with Police Services and to his Probation Officer. The accused had ongoing difficulties with reporting in a timely manner which compelled the Probation Officer to submit a breach. The accused was residing with his mother at that time and been experiencing serious medical issues because of long-standing addictions issues. He was not intoxicated, he committed no substantive offence and did not remove himself from supervision. His health concerns may have impacted his ability to get to his appointments and attend programming, however, he always kept in touch with his supervisor, albeit late. An aggravating factor, however, is that this is not the accused’s first breach of this recognizance. He was sentenced on two breaches for not complying with his assessment, treatment, programming and a curfew. He also has a lengthy criminal record with violent convictions.

The purpose of a s 810.2 recognizance is to protect the public by preventing future criminal activity. Paramount consideration is not only placed on this purpose but also specific and general deterrence. The gravity of the breach must be examined in the context of the offender’s history (R v Zimmerman, 2011 ABCA 276). The court is required to consider the prior offences and circumstances of the accused in determining an appropriate sentence, keeping in mind that this type of recognizance has a different purpose from an undertaking or probation order.

With respect to Gladue factors (R v Gladue, [1999] 2 CNLR 252 [“Gladue”]), the accused had a difficult childhood, including attending residential school. The accused grew up from residential school to the penitentiary. The Supreme Court of Canada reiterated the seriousness of the incarceration problem and called on the justice system to address it. Rehabilitation was emphasized and sentencing judges were directed to ensure that they were not contributing to ongoing systemic racial discrimination (R v Ipeelee, [2012] 2 CNLR 218 [“Ipeelee”]).

S 718.2(e) is properly seen as a “direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process” (Gladue). No two offenders will come before the courts with the same background and experiences, having committed the same crime in the exact same circumstances. S 718.2(b) simply requires that any disparity between sanctions for different offenders be justified. Sentencing judges, as front-line workers in the criminal justice system, are in the best position to re-evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination (Ipeelee). Uniformity hides inequity, impedes innovation and locks the system into its mindset of jail. There is a constitutional imperative to avoiding excessive concern about sentence disparity (Ipeelee).

While specific and general deterrence are significant factors in assessing these types of breaches, the accused’s past and criminal history at this time and in this particular breach does not give the Court any reason to fear that the public is at risk of a violent crime. The accused’s lack of reporting is not significant as completely removing himself from supervision, which did not occur. He was lackadaisical in reporting as opposed to complete non-compliance. He turned himself in at the earliest opportunity and did not commit any other substantive offences. While a s 810.2 recognizance has a similar purpose and method as a long-term offender order, the accused is not a long-term offender. He was reporting and participating in his programs, albeit not as stringently as he should have been concerning his attendance. While these types of breaches are something the Court should be concerned about, there is no evidence that the accused has fallen back into his addictions that would open up a risk to the public.

The determination of a just and appropriate sentence is a highly individualized exercise and involves a variety of factors that are difficult to define with precision. It may happen that a sentence falls outside a particular range, that may never have been imposed in the past for a similar crime, but is not demonstrably unfit. Everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. The fact that a judge deviates from a sentencing range established by the courts does not in itself justify appellate intervention. The accused is not more likely to commit a violent crime because he missed an appointment.

 

Awashish v Conseil des Atikamekw d’Opitciwan et al, 2019 FC 1131

Motion dismissed. The Applicant failed to demonstrate he would suffer irreparable harm if a First Nation election proceeded, as he can pursue an adequate remedy for his complaint before the First Nation’s Appeal Board.

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A general election for the Conseil des Atikamekw d’Opitciwan was called for September 10, 2019. The elections are governed by an electoral code, where along with other conditions, all candidates must be ordinarily resident in Opitciwan. The Applicant was nominated for the position of Chief, but the Electoral Officer withdrew the name from the ballot because the Applicant does not reside in the community. The Applicant seeks an interlocutory injunction so that his name remains on the list of candidates. He submits that the residency requirement is invalid, discriminatory and contrary to the Charter. After he brought an application for judicial review of the Electoral Officer’s decision, the Applicant subsequently brought this motion for an interlocutory injunction. Despite a strong case shown on the merits, the Applicant has failed to demonstrate that he would suffer irreparable harm if his motion was not granted. There is an adequate remedy before the Opitciwan First Nation Appeal Board that would allow him to raise his Charter claims.

An interlocutory injunction is a temporary measure intended to preserve the rights of the parties until a decision is rendered on the merits but it is not a final resolution of the case. This takes into account that such motions must often be decided on the basis of an incomplete evidentiary record and that a final resolution cannot be reached in a short time frame (Manitoba (AG) v Metropolitan Stores Ltd, [1987] 1 SCR 110; RJR–MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR”], and Harper v Canada (AG), 2000 SCC 57).

The first stage of a three part test requires the applicant to demonstrate a serious question to be tried, meaning neither frivolous nor vexatious. At the second stage, the Applicant must convince the court that irreparable harm would be suffered if an injunction is refused. The third stage of the test requires an assessment of the balance of convenience to identify the party that would suffer the greater harm from the interlocutory injunction, pending a decision on the merits. (R v Canadian Broadcasting Corp, 2018 SCC 5 [“CBC”]) It should not be believed in this highly contextualized and fact dependent framework, that the three components of this framework are completely independent of each other (Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of SK Inc, 2011 SKCA 120).

This Court often hears motions for interlocutory injunctions in First Nations governance matters. The court’s discretion should be guided by the principle of self-government, and assess whether the various courses of action would facilitate decision-making by the First Nation itself (Gadwa v Joly, 2018 FC 568). Unlike a prohibitive injunction that has a relatively low threshold (RJR), a mandatory injunction directs the defendant to undertake a positive course of action. In these instances, a “strong prima facie case” is required. Upon a preliminary review of the application, the court must be satisfied that there is a strong likelihood that the applicant at trial will be successful in proving the allegations set out in the originating notice (CBC).

In this matter, the Applicant is not seeking to prevent the election from being held, but an order to include his name in the list of candidates. In certain cases, the result of the interlocutory motion will in effect amount to a final determination of the action, thereby, a more extensive review of the merits of the case must be undertaken (RJR). When the judge hearing the merits of the case cannot undo what was done at the interlocutory stage, a strong prima facie case must be established. If the injunction is granted, the election would be conducted with ballots that include the Applicant’s name, therefore he will have obtained what he wants, making it difficult to see how a hearing on the merits would be useful (Toronto (City) v Ontario (AG), 2018 ONCA 761).

The Applicant has demonstrated the existence of a serious question to be tried, but not a strong prima facie case. The trial judge dealing with this matter will assess the evidence presented to the court and come to the appropriate conclusions. Harm is by definition reparable if there is recourse that makes it possible to vindicate the underlying right and that provides adequate remedies. The doctrine of exhaustion of remedies requires that an applicant pursue all adequate administrative remedies available to them prior to applying for judicial review. This doctrine improves respect for self-government, as it ensures that governance disputes are first dealt with by Indigenous decision-making processes (Whalen v Fort McMurray No 468 First Nation, 2019 FC 732).

The Election Code provides for the establishment of an appeal committee. Upon receipt of a complaint, the appeal committee conducts an investigation and, if founded, they may take all necessary measures, including ordering a new election. The Applicant could file a complaint on the basis that the rejection of his nomination was in violation of the Charter. The Election Code also provides that any person whose nomination is withdrawn by the Electoral Officer may immediately bring that decision to the appeal committee which the Applicant could have done. The Court therefore concludes that the Applicant has a recourse that will allow him to put forward his Charter arguments and that he did not demonstrate irreparable harm. There was no need to fully address the balance of convenience.