Orlagh O'Kelly

The applicants, recently elected councillors of Carry the Kettle First Nation, sought an interlocutory stay of their removal from office and of an upcoming by-election pending their applications for judicial review.

The remaining council members had removed them in meetings the applicants argued lacked both quorum and the required two-thirds majority under the Nation's Custom Election Act.

Applying the RJR-MacDonald test, the Federal Court found a strong prima facie case that the removal was procedurally invalid due to lack of quorum and qualified majority.

The respondents conceded irreparable harm, and the balance of convenience favoured the applicants given the public interest in democratic continuity and the rule of law within the First Nation.

The motion for a stay was granted.

The applicants applied for judicial review seeking orders in the nature of mandamus, quo warranto, and certiorari related to a forthcoming band council election.

They sought to mandate electronic voting or a community vote and to declare the end of the incumbent council's term.

The Federal Court found no basis for mandamus, as the election had been scheduled according to the Custom Election Code, which did not permit electronic voting.

The Court also held that the term of office under the Code provided for a 30-day extension after the posting of election results, dismissing the request for quo warranto.

The applicant sought an interlocutory injunction to suspend the March 29, 2021 decision by the band council to cancel the scheduled April 4, 2021 election.

The court found that the applicant had established a strong prima facie case that the cancellation decision was made without broad community consensus, causing irreparable harm through the disenfranchisement of voters.

The balance of convenience favoured the applicant.

The injunction was granted, suspending the cancellation and ordering the election process to resume.

The applicant, a member of the Acho Dene Koe First Nation, sought judicial review of the band council's decision to postpone its election and extend its term of office, and challenged the validity of section 4 of the federal First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases).

The Federal Court held that the band council did not have the customary power to extend its own term.

The Court further declared that section 4 of the Regulations was ultra vires the regulation-making power in section 73(1)(f) of the Indian Act, finding that the power to regulate disease prevention on reserves did not extend to regulating the basic parameters of democratic governance such as the length of elected officials' terms.

The declaration of invalidity was suspended for 60 days.

The applicant sought an interlocutory injunction to be added to the ballot for the upcoming election for chief of the respondent First Nation after the returning officer declared him ineligible due to an outstanding debt.

The Federal Court dismissed the motion for interim relief.

Applying the RJR-MacDonald test, the Court found that while the applicant raised serious issues regarding the validity of the debt and the election code, he did not demonstrate a strong likelihood of prevailing based on the incomplete evidentiary record.

Furthermore, the applicant failed to show irreparable harm because adequate alternative remedies were available, including appealing the election results through the First Nation's internal appeal process or challenging them directly in Court after the election.

The defendants, Ontario, Quebec, and Canada, sought leave to appeal a motion judge's decision that dismissed their motions for summary judgment and allowed the plaintiffs to amend their statement of claim.

The underlying action involved a fatal collision following a high-speed chase by Akwesasne Police Service officers, with the plaintiffs alleging vicarious and direct liability against the government defendants.

The court granted leave to appeal, finding that the motion judge's decision conflicted with established appellate authorities on the tests for summary judgment, amending pleadings, and establishing a private law duty of care, and that there was good reason to doubt the correctness of the decision.