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T-326-87
Council of the Huron-Wendat Nation (Plaintiff) v.
Michel Laveau and Bruno Gros-Louis (Defen- dants)
INDEXED AS: HURON-WENDAT NATION (COUNCIL) V. IAYEAU
Trial Division, Dubé J.—Quebec, April 22; Ottawa, April 30, 1987.
Native peoples — Oral resignations of Chief and Councillor at Council meeting constituting valid resignations within Indian Act, s. 78(2)(a)(ii) — Act and case law silent re: whether written resignation required — If legislator intending to specify procedure would have done so — Defendants not proving alleged custom of written resignations — Common law requiring resignation be tendered in any fit manner where legislation silent as to procedure — Resignations tendered in fit manner and duly accepted by Council — Indian Act, R.S.C. 1970, c. I-6, s. 78(2)(a)(ii) — Code of Civil Procedure, Art. 223-233.
Judicial review — Equitable remedies — Declarations — Action for declaration re validity of oral resignations of Indian Chiefs appropriate as permitting arguments to be filed and witnesses to be heard — Quo warranto application limited to filing of affidavits — Plaintiff seeking statement of principle, not simple divestiture of public position — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Construction of statutes — Indian Act silent re: whether resignations of Chief and Councillors need be in writing — Legislation governing certain elected bodies specifying resigna tion procedures — If legislator intending specific procedure, would have said so — Indian Act, R.S.C. 1970, c. I-6, s. 78(2)(a)(ii) — House of Commons Act, R.S.C. 1970, c. H-9, s. 6 — Cities and Towns Act, R.S.Q. 1977, c. C-19, ss. 58, 59 Municipal Code of Quebec, R.S.Q. 1977, c. C-27.1, Art. 271.
This is an action for a declaratory judgment regarding the resignations of the defendants given orally at a Council meet ing. The defendants subsequently informed the Council that they intended to remain in their seats. The Council refused the defendants the right to resume their duties, and adopted a resolution recognizing the resignations as final and irrevocable. The issue is whether the oral resignations are valid within subparagraph 78(2)(a)(ii) of the Indian Act.
Held, the action should be allowed and the resignations held to be valid.
The Act and case law are silent on whether, for such resignation to be valid, it must be in writing. Other legislation (House of Commons Act, Quebec's City and Towns Act and Municipal Code of Québec) does specify certain procedures for resignation. If the legislator had intended to specify a proce dure, as for example by requiring that the resignation be in writing, he would have said so.
The defendants did not prove the allegation that the custom in the Huron-Wendat Nation is that resignation mentioned in section 78 should be in writing. To establish such custom one would have to present persuasive testimony from historians or patriarchs of the Nation.
In the The County of Pontiac case, the Superior Court fell back on the common law which required that such a resignation be made in any fit manner when the Code did not provide a procedure for resignation. The two defendants tendered their resignations in a fit manner, the resignations were duly accept ed by the Council and the minutes of the relevant meetings attest that these resignations were made.
Quo warranto issues directly to a person holding a public position without right for the purpose of removing him from that position. An action for a declaratory judgment was fully justified since it enabled arguments to be filed and witnesses to be heard, whereas an application for quo warranto would be limited to the filing of affidavits. Additionally the plaintiff was seeking a statement of principle, not simple divestiture of a public position.
CASES JUDICIALLY CONSIDERED
APPLIED:
The County of Pontiac v. Ross (1890), 17 S.C.R. 406, affg Corp. of County of Pontiac v. Pontiac Pacific Junction Railway Co. (1888), 11 L.N. 370 (S.C. Aylmer (Dist. of Ottawa)).
COUNSEL:
Jean Petit for plaintiff.
Richard Binet for defendants.
SOLICITORS:
Corriveau, Bouchard, Corriveau & Associés, Québec, for plaintiff.
Croteau, Binet et Gosselin, Québec, for defendants.
The following is the English version of the reasons for judgment rendered by
DUBÉ J.: The action at bar is seeking a declara- tory judgment regarding the resignations of Chief ("Grand Chief') Michel Laveau and Councillor ("Deputy Chief') Bruno Gros-Louis, given orally
at a meeting of the Council of the Huron-Wendat Nation on October 7, 1986.
The two defendants were elected to their respec tive positions on September 5, 1986. The minutes of the aforesaid meeting report the said resigna tions as follows:
[TRANSLATION] In concluding, Grand Chief Laveau announced at 10:35 am that this was the last meeting he would be presiding over as Grand Chief of the Huron-Wendat Nation and that he was officially tendering his resignation. He would nevertheless continue to preside over the meeting until its end. He added that his political career was over and that it was important for his resignation to be regarded in a positive light. He concluded by saying that his decision was irrevocable.
WORD BY THE GRAND CHIEF
After tendering his official resignation as Grand Chief of the Huron-Wendat Nation, Mr. Michel Laveau thanked all the deputy chiefs for the three meetings he had presided over with due order and respect. He said he was pleased in general with the matters resolved.
The Grand Chief told the Deputy Grand Chief that the reasons for his resignation were personal, but it was important for him to step down as he did not wish any further involvement with local politics and would henceforth be spending time with his family.
Chief Bruno Gros-Louis also tendered his official resignation as Deputy Chief of the Huron-Wendat Nation Council, saying he had two major projects in mind that he wanted to work on, and he concluded by wishing all the Deputy Chiefs of the Huron- Wendat Nation Council the best of luck.
The six (6) remaining Deputy Chiefs, though disappointed at the irrevocable decision by the Grand Chief of the Huron-Wen- dat Nation, Mr. Michel Laveau, and the Deputy Chief of the Huron-Wendat Nation Council, Mr. Bruno Gros-Louis, accept ed the two (2) resignations and sincerely thanked the two resigning Chiefs, wishing them the best possible luck in future.
The two defendants subsequently changed their minds and informed the Council by letter on Octo- ber 16 and 17 that they intended to remain in their posts. The first two paragraphs of the letter from the defendant Laveau indicated his intentions:
[TRANSLATION] As decided at the discussions at the meeting of October 7, 1986, it was agreed that I would send you a formal letter of resignation.
On reflection, this is to inform you that contrary to what you were told verbally I confirm that I will continue to sit as Grand Chief of the Council of the Huron-Wendat Nation.
At its meeting on October 20, 1986 the Council nevertheless refused the defendants "the right to resume" their duties. On October 31, 1986 the Council adopted resolution 1423 recognizing the two defendants' resignations as "final and irrevo cable".
At the hearing of this case the Council secretary testified that her minutes are an accurate account of the events which took place at the meeting of October 7 and at subsequent meetings. Further, the defendants did not challenge the minutes by improbation pursuant to Articles 223-233 of the Code of Civil Procedure.
The two defendants, for their part, alleged that they resigned because of the lack of respect of other members of the Council toward the Grand Chief. He felt completely frustrated by the hostile attitude of the other members. He said that he "lost control" and resigned. He regained control of himself in the next few days and thought he should return to his position.
It is not my function to decide whether the defendants' resignations were justified. My role is limited to deciding whether those oral resignations, contained in the minutes of the meeting, are valid resignations within the meaning of subparagraph 78(2)(a)(ii) of the Indian Act [R.S.C. 1970, c. I-6]:
78....
(2) The office of chief or councillor becomes vacant when
(a) the person who holds that office
(ii) dies or resigns his office, or
The defendants alleged that, for such a resigna tion to be valid, it must be made in writing. The above-cited Act and the applicable case law are silent on the point.
However, other legislation does specify certain procedures for resignation. For example, the House of Commons Act [R.S.C. 1970, c. H-9] provides in section 6 that any Member may resign his seat by giving notice of his intention to resign in his place in the House (in which case the notice is entered by the Clerk in the journals of the House), or by sending his notice to the Speaker in writing.
The Cities and Towns Act [R.S.Q. 1977, c. C-19] of the Province of Quebec provides in sec tions 58 and 59 for a resignation signed by the person resigning (the mayor or a councillor). The Municipal Code of Québec [R.S.Q. 1977, c. C-27.1] provides in Article 271 that the mayor or any councillor may resign his seat by transmitting his resignation signed by himself to the secretary- treasurer of the municipality.
In his defence argument counsel for the defen dants alleged that the custom of the Huron-Wen- dat Nation is that the resignation mentioned in section 78 of the Act should be in writing. How ever, he did not call any witnesses to prove such a custom apart from the two defendants.
Certain extracts from the minutes of previous meetings of the Council and some letters taken from the Council's files show that Petit Chief Roch Sioui resigned by letter on May 25, 1982, Petit Chief Benoit Picard resigned by letter on January 9, 1985 and Deputy Chief Marie-Paule Gros-Louis resigned by letter on April 22, 1985, the defendant Michel Laveau himself having resigned by letter on May 6, 1985 (his second of three resignations).
Further, it appears from the minutes of October 6, 1969 that the defendant Laveau "resigned due to pressure of work" (his first resig nation). There is no letter of resignation from him in the Council's files. Mr. Laveau honestly admit ted that he did not remember whether he resigned in writing on that occasion.
I cannot regard this evidence alone as establish ing a custom. In my view, one would have to go back much further and to present persuasive tes timony from historians or patriarchs of the Nation.
In a judgment dating from 1889, The County of Pontiac v. Ross,' the Supreme Court of Canada has already discussed the validity of a verbal resig nation by the Warden of Pontiac County (an elective position, contrary to what was suggested by counsel) 2 at a special session of the Council, a
' (1890), 17 S.C.R. 406.
Z Ibid., at p. 410, and Municipal Code [S. of Q. 1870, 34
Vict., c. 68], Art. 248.
resignation which was duly entered in the minutes of the said session. Like that of the mayor, this position was governed by the Municipal Code in effect at the time. Article 342 provided that the position of mayor became vacant "when the resig nation of such mayor is accepted by the council", without further formalities. The Superior Court applied this rule by analogy to the Warden of the county.
The Supreme Court held that the resignation was valid and the election of his successor was also.
As mentioned above, the Indian Act provides no procedure for the resignation of a Chief or a Councillor. If the legislator had intended to specify a procedure, as for example by requiring that the resignation be in writing, he would have said so.
In the above case of Corp. of County of Pontiac v. Pontiac Pacific Junction Railway Co.' the Su perior Court discussed at first instance the fact that the Code provided no procedure for resigna tion. It accordingly fell back on the common law, which simply required that such a resignation be made in any fit manner (at pages 372-373):
... The code mentions no mode by which the resignation of a mayor or of a warden should be made. We must therefore refer to the common law; and under its provisions a resignation, unless a special mode is indicated, can be made in any fit manner. Dillon, in his work on municipal corporations, vol 1, No. 224, says: "If the charter prescribes the mode in which the resignation is to be made, that mode should of course be complied with .... If no particular mode is prescribed, neither the resignation nor acceptance thereof need be in writing or in any form of words." And Angell and Ames, No. 433, say: "Where neither the charter nor by-laws prescribe any particu lar mode in which the members may resign their rights of membership, and their resignation be accepted, such resigna tion and acceptance may be implied from the acts of the parties .... To complete a resignation, it is necessary that the corporation manifest their acceptance of the offer to resign, which may be done by an entry in the public books." It is moreover not necessary that the code should provide that a warden has the right to resign, and that the council may accept his resignation, as the right to appoint an officer always implies the right to accept his resignation and to name his successor. Dillon, in the section above referred to, says: "The right to accept a resignation is a power incidental to every corpora tion .... The right to accept the resignation of an officer is incidental to the power of appointing him." And Angell and Ames, No. 433, say: "The right to accept a resignation passes
( 1888), 11 L.N. 370 (S.C. Aylmer (Dist. of Ottawa)).
incidentally with the right to elect." In this case the resignation of Mr. Poupore was made verbally, and the county council at its next meeting ordered that an entry of his resignation be made on its minutes; and this was duly done.
As regards the form in which the resignation of a mayor or a warden can be made, we have, it is true, no rule in the code; but we have rules in our statutes for the resignation of a member of the Legislative Assembly. A member can resign either in writing, or verbally in his place in the House, and if he resigns from his seat in the House, the clerk makes an entry of his resignation in the journals. This is exactly what took place in this case; and in the absence of all enactment as to the mode and form for the resignation of a warden, this mode and form ought surely to be allowed by analogy to be sufficient.
The two defendants in the case at bar tendered their resignations in a fit manner, the resignations were duly accepted by the Council and the minutes of the relevant meetings attest that these resigna tions were made.
Finally, counsel for the defendants alleged that the plaintiff had sought the wrong remedy under section 18 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10]: it should have proceeded by a writ of quo warranto and not a declaratory judg ment. It is true that a quo warranto issues directly to a person holding a public position without right for the purpose of removing him from that posi tion. In the case at bar, however, an action for a declaratory judgment was fully justified since it enabled arguments to be filed and witnesses to be heard, whereas a simple application for quo war- ranto would be limited to the filing of affidavits. Additionally, the plaintiff was seeking a statement of principle, not simply divestiture of a public position. In any case, I would not have hesitated to allow whatever amendments were necessary so that the action justified by the circumstances could be brought.
The action is accordingly allowed. The resigna tion of the two defendants as Chief ("Grand Chief") and Councillor ("Deputy Chief") are held to be valid, and the Court rules that resignation from the position of Chief or Councillor under subparagraph 78(2)(a)(ii) of the Indian Act can be made orally at a Council meeting.
Judgment for the plaintiff with costs and disbursements.
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