Frank v. Bottle
T-657-93
MacKay J.
29/6/93
19 pp.
Application for interlocutory injunction pending trial of action-Plaintiff elected Chief of Blood Tribe-Defendants elected members of Band Council-Council adopting resolution to proceed to remove Chief from office pursuant to provisions of Blood Tribe Custom Election By-law-Further resolution purporting to suspend plaintiff from office until hearing and final decision as to removal-Chief advised of action by letter, signed by all twelve Council members, stating Chief guilty of neglect of duty, malfeasance, misconduct-Plaintiff applying for interim order and commencing action by statement of claim-Interim injunctive order issued preserving status quo before steps initiated to remove plaintiff from office-Also order directing parties to propose terms for referendum upon which had earlier agreed-Within Court's jurisdiction under Federal Court Act, s. 18 to award relief claimed-Canatonquin v. Gabriel, [1980] 2 F.C. 792 (C.A.) applied-Band Council "federal board, commission or tribunal" within Federal Court Act, s. 2 definition-Council, whether elected by customary law or under Indian Act, s. 74, having status and authority for purposes of management and governance of Tribe, for purposes recognized by law, under Indian Act-Indian Act, providing for recognition of customary law under which parties claiming offices-S. 2 definition of "council of the band" recognizing Council may be elected either under s. 74 or in accordance with customary law-Customary law recognized as law by reason of federal statutory law, and Council so elected having status in accord with Indian Act-Court also having jurisdiction to award interim orders in interests of justice under s. 18.2-Serious issues raised as to process followed by Council, respective powers of Chief, Council-Irreparable harm in sense harm not redressable in damages if removal of plaintiff from office not restrained pending resolution of differences, or future regular election, or trial-Law concerning wrongful dismissal not applicable to loss of elective office-Plaintiff would have neither claim to damages for wrongful dismissal nor monetary claim for loss of reputation-Balance of convenience favouring continuance of injunctive orders-Irreparable harm to plaintiff if injunction not granted and if he should succeed at trial outweighing harm likely to be caused to defendants if injunction continues and plaintiff unsuccessful-Strained working relations not "inconvenience" entailed in balancing potential harm-Routine administration of Tribe can continue as it has since first injunction issued-Continuing injunction preserving status quo providing time for parties to reflect upon responsibilities, interests in serving Tribe through offices to which elected; also time to consider means and procedures to resolve differences-Unless parties agreeing on facts, thus permitting trial without usual pre-trial preparations, trial not anticipated before next general election in 18 months-Therefore inappropriate to grant injunction maintaining status quo pending trial i.e. uncertain future date-Injunction preserving status quo issuing until November 2, 1993-General terms of previous orders of Court still applicable-Indian Act, R.S.C., 1985, c. I-5, ss. 2, 74-Federal Court Act, R.S.C., 1985, c. F-7, ss. 2 (as am. by S.C. 1990, c. 8, s. 1), 18 (as am. idem, s. 4), 18.2 (as enacted idem, s. 5).