Judgments

Decision Information

Decision Content

T-1999-88
Larry Sault (Plaintiff) v.
Maurice LaForme, Graham King, George King, Sylvia Sault, Carol Brant, Georgina Sault (Defendants)
INDEXED AS: SAULT V. LAFORME
Trial Division, Strayer J.—Toronto, February 8; Ottawa, February 13, 1989.
Native peoples — Band Council's resolution suspending plaintiffs membership on Council, invalid — Council's reso lution tantamount to judgment on plaintiffs qualifications — Indian Act exhaustive as to council elections and meetings — Addition of criteria to those in s. 28(2) of Act contrary to Parliament's intention — Indian Band Council Procedure Regulations not granting Council implied power to exercise other disciplinary control over meetings on ad hoc basis.
Equity — "Clean hands" doctrine — Applicable only where plaintiff seeking Court's aid to make unconscionable gain'— Plaintiffs offensive behaviour not directly related to subject- matter before Court — Not case for application of doctrine.
Practice — Costs — Lack of case law on point not prevent ing award of costs against unsuccessful defendants — Careful consideration of legislation should have led defendants to Court's conclusion.
This is an action for a declaration that a resolution passed by an Indian Band Council, purporting to suspend the plaintiff, a Council member, without pay for the remainder of his two-year term, is invalid. Injunctive relief is also sought to restore the plaintiff to membership in the Council and on various commit tees, and requiring payment of honoraria for attendance at meetings thereof. The decision to suspend the plaintiff was based on his inexperience, public criticism of Council decisions, and willingness to support legal action against the Band or the Council by a former staff member. The plaintiff argues that neither the Indian Act nor the Indian Band Council Procedure Regulations conferred on the Council jurisdiction to adopt the resolution.
Held, the resolution was invalid. In view of that finding, no injunction was necessary to reinstate the plaintiff. The plaintiff was entitled to honoraria for attendance at Council meetings only.
The immediate cause of plaintiffs expulsion from Council was his intervention on behalf of a former staff member who had left the Band after two days' work. The resolution was not a means of maintaining good order, but rather a judgment that
the plaintiff was not a suitable person to be a Council member. The Council had no power to disqualify the plaintiff on that basis.
A Band Council is a "creature of the Indian Act". As such, the Council only has those powers that are conferred on it by the Act. The scheme of the Act with respect to council elections and meetings is exhaustive. The grounds upon which the office of a duly elected councillor can be considered vacant are set out in subsection 78(2) of the Act. The addition of criteria such as inexperience, controversial conduct, interference with respect to re-employment of a former staff member, violates Parliament's intention to exclude all criteria other than those set out in subsection 78(2). Furthermore, the fact that the defendants did not contemplate any steps to restore the strength of their Council and fill the vacancy contravenes subsections 74(2) and 78(4) of the Act.
Neither section 10 nor 16 of the Indian Band Council Procedure Regulations (which grant the Band Chief authority to maintain order at meetings of the Council), nor section 23 (whereby a Band member can be excluded from meetings on grounds of improper conduct), could be relied upon. None of those provisions give the Council implied power to exercise other disciplinary controls over meetings on an ad hoc basis. In any event, the resolution in question does not relate to proce dure but to the qualification of a Band member to be a member of the Council. Nor was section 31 of the Regulations (which grants Council power to make rules of procedure not inconsist ent with the Regulations) applicable. (I) Section 31 delegates to Council a legislative power; such a power cannot be exer cised on an ad hoc basis; (2) the rules, if any, must relate to procedure, not to qualification matters; (3) any rule purporting to add more criteria for expelling members would be inconsist ent with section 23 of the Regulations.
The Council's resolution being invalid, there was no need to grant an injunction to restore plaintiff to membership in the Council and on the committees. The plaintiff is entitled to be paid honoraria for his attendance at Council meetings only, the admitted facts confirming such attendance.
The defendants' submission, that this is a proper case for the application of the "clean hands" doctrine with the result that the relief sought should be disallowed, fails. The doctrine applies only where a plaintiff is seeking the aid of the Court to help him make some unconscionable gain. The plaintiff's unconscionable conduct is not directly related to the transaction before the Court, i.e. the unlawful decision of a quasi-public body.
The defendants' contention, that no costs should be awarded against them on the ground that this is a case of first impres sion, also fails. While it is true that there is no case on point, a careful consideration of the Act and the Regulations should have led the defendants to treat the resolution as invalid.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 35.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18. Indian Act, R.S.C. 1970, c. 1-6, ss. 74(2), 78, 79, 80, 81, 83.
Indian Band Council Procedure Regulations, C.R.C., c.
950, ss. 10, 16, 23, 25, 25, 31.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Public Service Alliance of Canada v. Francis et al., [1982] 2 S.C.R. 72; Re Whitebear Band Council and Carpenters Provincial Council of Saskatchewan et al. (1982), 135 D.L.R. (3d) 128 (Sask. C.A.); Canatonquin v. Gabriel, [1980] 2 F.C. 792 (C.A.); Attorney General of Canada v. Brent, [1956] S.C.R. 318; 2 D.L.R. (2d) 503; Brant Dairy Co. Ltd. et al. v. Milk Commission of Ontario et al., [1973] S.C.R. 131; (1972), 30 D.L.R. (3d) 559; City of Toronto v. Polai, [1970] 1 O.R. 483 (C.A.); result affd. sub nom. Polai v. Corporation of the City of Toronto, [1973] S.C.R. 38.
AUTHORS CITED
Spry, I. C. F., The Principles of Equitable Remedies, 3rd ed. London: Sweet & Maxwell, 1984.
COUNSEL:
P. D. Amey and G. Pulham for plaintiff. W. Henderson for defendants.
SOLICITORS:
Waterous, Holden, Amey, Hitchon, Brant- ford, Ontario, for plaintiff.
LaForme, Henderson, Toronto, for defend ants.
The following are the reasons for judgment rendered in English by
STRAYER J. Introduction
This is an action for a declaration that a resolu tion of June 13, 1988 of the Mississaugas of the New Credit Indian Band Council, purporting to suspend the plaintiff without pay as a member of that Council for the remainder of his term of office, is invalid. Injunctive relief is also sought to restore the plaintiff to membership in the Council
and on those committees on which he formerly sat, and requiring payment to him of honoraria for attendance since June 13, 1988 at meetings where he has been denied the status of a member of Council.
The defendants are the other members of the Council still in office whom, the plaintiff has confirmed, he is suing in their capacity as council lors and not in their personal capacity.
Facts
Pursuant to a notice to admit facts served by the plaintiff on the defendants, the latter have made the following admissions:
1. That the Plaintiff was properly elected by acclamation to the position of Band Councillor of the Mississaugas of the New Credit Band on December 16, 1987.
2. That the term of office of Councillor was to be two years commencing December 16, 1987 and ending December 15, 1989.
3. That the Defendants in this action constitute the remainder of the elected Band Council and were sitting as Band Council lors at all times material to this action.
4. That, by Motion No. 1 of the Special Council Meeting of Thursday, December 17, 1987, the Plaintiff was appointed to the following Administrative Committees of the Band Council:
(a) Native Horizons Committee;
(b) Executive/Finance Committee; and
(c) Social Services Committee.
5. That, by Motion No. 10 of the Regular Council Meeting of Monday, April 11, 1988, the Plaintiff was appointed to the Railway Land Claims Committee of the Band Council.
6. That Councillors receive a $100.00 honorarium for each regular Council Meeting which they attend and $75.00 honorarium for each Committee Meeting which they attend.
7. That by Motion No. 8 of the Regular Council Meeting of Monday June 13, 1988, Band Council purported to suspend the Plaintiff from Band Council for the duration of his term.
8. That at the Regular Council Meeting of June 27, 1988, Band Council reaffirmed the previous Motion purporting to suspend the Plaintiff.
9. That since the purported suspension:
(a) The Plaintiff is not entitled to have the floor to speak to any issues raised at Council or Committee Meetings;
(b) The Plaintiff's vote is not recognized at any Council or Committee Meetings;
(c) The Plaintiff no longer receives regular mail related to Council business and is denied further information nor mally available to Councillors concerning Council business;
(d) The Plaintiff has not received the regular honorarium for his attendance at the Regular Council Meetings of
June 13, 1988, June 27, 1988, July 25, 1988 and Sep- tember 26, 1988; and
(e) Council has purported to remove the Plaintiff from his position on the Executive/Finance Committee, the Social Services Committee and the Land Claims Committee.
10. That the Plaintiff is not in breach of s.78(2)(a) of the Indian Act.
11. That the Minister of Indian Affairs has not made a decla ration pursuant to s.78(2)(b) of the Indian Act.
12. That, at the time of Mr. Sault's purported suspension, the Band Council had not adopted any other Rules of Procedure apart from those contained in the Indian Act and the regula tions passed thereunder, which govern procedure at Council Meetings.
The resolution in question was worded as follows:
That this Council hereby suspends Larry Sault for the duration of the term without pay.
At a subsequent meeting on June 27, 1988 after hearing counsel for both Mr. Sault and the Band, the Council confirmed this resolution.
The justification now given by the majority of Council for this resolution is well summarized in their statement of defence which alleges that the action taken by Council was
... deemed appropriate and necessary due to the cumulative effect of:
(a) the plaintiffs total lack of experience as a member of Council prior to December of 1987;
(b) the plaintiffs contentious and offensive approach to the conduct of Band business and his inability to establish a good working relationship with staff;
(c) the plaintiffs continuing disruption of Council meetings, resulting in frustration and ill-will as well as unduly prolong ing meetings of Council;
(d) the plaintiffs public statements calculated to diminish the reputations of other Councillors, employees of the Band and to lower the New Credit community in the esteem of neighbouring communities and other Indian reserves; and
(e) the plaintiffs willingness to support legal action against the Band and/or Council by persons not members of the Mississaugas of New Credit Band of Indians.
The real issue for me to decide is whether the Council had the jurisdiction to pass this kind of resolution. It is not for me to pass judgment on the conduct of the plaintiff or the reaction thereto of the defendants, except to the extent that this enables me to characterize the decision taken by
Council. Suffice it to say that the evidence does indicate that the plaintiff was abrasive in his deal ings with both Band staff and other members of the Band Council. He indulged in public criticism of other members of Council and decisions which they had taken or were about to take. He circu lated his views by circular letters to members of the Band and by interviews with the press. It seems equally clear that other members of the Council overreacted negatively to what even the plaintiff now seems to recognize in part was imprudent behaviour on his part. While that behaviour does not appear to go much beyond what is regarded as permissible, if sometimes dis tasteful, conduct on the part of elected representa tives elsewhere, it no doubt was disruptive in the context of an Indian Band of nine hundred mem bers with a Council consisting of a Chief and nine members. The act of the plaintiff which finally brought about the adoption of the resolution in question involved an intervention by the plaintiff on behalf of one Morgan Jacobs who had quit his job with the Band after two days. After discussing the matter with Jacobs, the plaintiff told the Band administrator that he thought that if the Band did not re-employ Jacobs the latter might have a cause of action and that he, the plaintiff, would assist Jacobs if necessary in pursuing it. As a result the Band administrator re-employed Jacobs without consulting other members of Council. While one might question the judgment demonstrated by both the plaintiff and the Band administrator in these circumstances, it was the plaintiff's role which was regarded as completely intolerable and resulted in the resolution in question.
The plaintiff takes the position in these proceed ings that the Band Council had no jurisdiction to adopt such a resolution, because its effect was to vacate his position on the Council for the remain der of his term, namely from June 13, 1988 to December 15, 1989. Briefly put, his position is: that there is no such express power in the Indian Act as it then stood' nor in the Indian Band Council Procedure Regulations 2 adopted under
' R.S.C. 1970, c. I-6. 2 C.R.C., c. 950.
that Act; and that the Council therefore had no such power as the scheme of the Act with respect to council elections and council meetings is exhaustive because a band council is a creature of federal statute, and has no power not granted to it under the statute. On the other hand the defend ants argue that the resolution represents nothing more than a suspension of the plaintiff from meet ings of the Council and its committees, and that any public body has the implied power to disci pline its members in this way to enable it to carry on its business. They further argue that the scheme of the Indian Act and its Regulations is not exhaustive in this respect and that, further, Indian Bands can resort to traditional forms of govern ment to the extent that the Indian Act does not expressly preclude them. Some evidence was intro duced to the effect that in the traditional govern ment of the Mississsaugas of the New Credit Band, before the Band was put under the election system of the Indian Act (pursuant to what is now section 74 of that Act) in 1924, councillors could be recalled for a variety of reasons including gen eral misconduct in the community. It was also suggested that at that time there was no fixed number of councillors.
It should be noted that the defendants made it clear they are not invoking aboriginal rights or section 35 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] as a basis for the resolution adopted by the majority on June 13, 1988, because in their view that resolu tion in no way conflicts with federal laws which are silent on this point. Thus there is no need to invoke aboriginal or constitutional rights as a jus tification for overriding federal laws.
Conclusions
I have concluded that the resolution in question was tantamount to expulsion of the plaintiff from the Band Council. It is not disputed that the resolution was intended to mean, and was so understood by all parties, that the plainitff could not participate as a member for the remaining eighteen months of his term nor could he be paid as other councillors are paid, namely by honoraria
of $100 for each Council meeting attended, and $75 for each committee meeting attended. There is no suggestion that this decision was to be subject to review, that it has been reviewed, or that it will be reviewed by Council during the remainder of the plaintiff's term. No conditions were attached, for example, to allow the plaintiff to return if he would apologize to Council for his conduct at meetings. Instead, it is clear that this decision was taken by the majority of Council to a large extent on the basis of the plaintiff's conduct outside of Council meetings. Apart from other complaints they had about him, mentioned above, concerning his communications to the press and to members of the Band generally, and the demands he made on Band employees for the provision of informa tion, it is clear that the immediate cause of his ejection from Council was his interventions with Morgan Jacobs and the Band administrator, Mark LaForme. Thus the resolution cannot be charac terized as simply a means of maintaining good order in Council meetings. It was a judgment that the plaintiff was not a suitable person to be a Council member.
I am satisfied that the Council had no power to disqualify the plaintiff in this manner from serving as a member of Council. Without dealing more discursively than necessary with the nature, func tions, and powers of Indian band councils, it will suffice if I consider those portions of the Indian Act and of the Indian Band Council Procedure Regulations which pertain to the election of coun cil members and the conduct of meetings of band councils. It has been authoritatively held that a band council such as this "is a creature of the Indian Act"' and this implies that such powers as such a council has derive from that statute. Indeed, it is this source of their powers which makes council decisions suject to review in this Court under section 18 of the Federal Court Act
' Public Service Alliance of Canada v. Francis et al., [1982] 2 S.C.R. 72, at p. 78. See also Re Whitebear Band Council and Carpenters Provincial Council of Saskatchewan et al. (1982), 135 D.L.R. (3d) 128 (Sask. C.A.), at p. 133.
[R.S.C. 1970 (2nd Supp.), c. 10],' a jurisdiction which has not been questioned by the defendants in this action. This basis for band council powers renders inappropriate most analogies with the inherent powers of sovereign bodies such as Parlia ment and legislatures. In the Indian Act as it stood at the time of these events, section 74 empowered the Minister to declare with respect to any band that after a day to be fixed the chief and council lors of that band are to be elected. It is common ground that such an order was made with respect to the Mississaugas of the New Credit Band in 1924. That section also provides for councillors to be elected by a majority vote of the electors of the band. Following some other provisions concerning eligibility to vote and election procedures, section 78 provides as follows:
78. (1) Subject to this section, chiefs and councillors hold office for two years.
(2) The office of chief or councillor becomes vacant when
(a) the person who holds that office
(i) is convicted of an indictable offence,
(ii) dies or resigns his office, or
(iii) is or becomes ineligible to hold office by virtue of this Act; or
(b) the Minister declares that in his opinion the person who holds that office
(i) is unfit to continue in office by reason of his having been convicted of an offence,
(ii) has been absent from meetings of the council for three consecutive meetings without being authorized to do so, or
(iii) was guilty, in connection with an election, of corrupt practice, accepting a bribe, dishonesty or malfeasance.
(3) The Minister may declare a person who ceases to hold office by virtue of subparagraph (2)(b)(iii) to be ineligible to be a candidate for chief or councillor for a period not exceeding six years.
(4) Where the office of chief or councillor becomes vacant more than three months before the date when another election would ordinarily be held, a special election may be held in accordance with this Act to fill the vacancy.
Section 79 permits the Governor in Council to set aside an election in the case of corrupt practices or violations of the Indian Act in connection with the election. Section 80 authorizes the Governor in Council to make regulations with respect to "band meetings and council meetings" and this the Gov-
4 Canatonquin v. Gabriel, [1980] 2 F.C. 792 (C.A.).
ernor in Council has done in the form of the Indian Band Council Procedure Regulations' as referred to above. There then follows in the Indian Act the heading "POWERS OF THE COUNCIL". Under this heading appear sections 81 and 83 which set out at some length specific by-law making powers of councils.
It will be noted that in section 78 Parliament has prescribed a term of two years for councillors and has carefully specified grounds upon which the office of a duly elected councillor can be con sidered vacant. It is admitted in the present case that none of those grounds apply here. Further, subsection 78(4) provides that where the office of a councillor becomes vacant more than three months before a general election a by-election may be held. One can see in this structure a desire by Parliament to guarantee certain democratic rights of the members of the band: namely that if they once elect a member of council he is entitled to serve, and they are entitled to be represented by him, for two years subject to such contingencies as him dying, being convicted of an offence, being involved in a corrupt practice, or absenting himself habitually from his duties. Only these specified events or misdeeds justify, in the view of Parlia ment, the vacating of his office. Yet the majority of this Band Council has taken upon itself to add to the criteria in subsection 78(2) such deficiencies as inexperience, critical and controversial conduct, disagreement with Band staff, imposition of work on staff, unilateral interference by persuasion or threats with respect to re-employment of a staff member, and lengthily disputatious conduct at meetings, as equally justifying what is in effect the vacating of a councillor's office. In my view Parlia ment intended to exclude all such criteria other than those mentioned when it enacted in subsec tion 78(1) that councillors were to hold office for two years and that this was to be subject only to the other provisions of section 78. To uphold the action taken by the defendants here would be to authorize the majority on band councils to sup press dissent by removing from council at any time
5 Supra note 2.
in their statutory term of office those members who offend the majority.
It will also be noted that the Act controls the number of councillors and tries to ensure that those offices are filled. Subsection 74(2) provides that there shall be one councillor for every one hundred members of the Band unless otherwise ordered by the Minister. At the time in question this meant that the Act required that there be nine members of the New Credit Band Council. Fur ther, subsection 78(4), as quoted above, provides for a by-election to be held to fill a vacancy unless the vacancy arises shortly before a regular elec tion. In the present case the defendants have not taken, nor do they contemplate, any steps to restore the strength of their Council to nine mem bers since the removal of the plaintiff. For this reason also the resolution is clearly inconsistent with the express provisions of the Act. (No reli ance has been placed on the fact that the Minister had approved, after the December 1987 election of nine members, a future reduction to seven mem bers. I can only assume that such reduction was not to have effect until the next election at the end of 1989.)
Nor can I find any implied authority for this resolution in the Act or Regulations. While there are numerous specific powers to make by-laws in sections 81 and 83 none of these powers touch the matter in question. Nor has the Band Council acted by a by-law in removing the plaintiff from office. The implications to be derived from the Indian Band Council Procedure Regulations are even more telling against the position of the defendants. The most relevant sections are as follows:
10. The presiding officer shall maintain order and decide all questions of procedure.
16. (1) The presiding officer or any member may call a member to order while speaking and the debate shall then be suspended and the member shall not speak until the point of order is determined.
(2) A member may speak only once on a point of order.
23. (1) The regular meetings shall be open to members of the band, and no member shall be excluded therefrom except for improper conduct.
(2) The presiding officer may expel or exclude from any meeting any person who causes a disturbance at the meeting.
25. The council may appoint special committees on any matters as the interests of the band may require.
31. The council may make such rules of procedure as are not inconsistent with these Regulations in respect of matters not specifically provided for thereby, as it may deem necessary.
It is clear that the chief, as presiding officer, is authorized by sections 10 and 16 to maintain order in a procedural sense at meetings of the council. By section 23 members of the band can be exclud ed from attending regular meetings only for improper conduct and the chief may expel from the meeting any person who "causes a disturb ance". None of these provisions imply a power of council as such to exercise other disciplinary con trols over meetings on an ad hoc basis. By express ly conferring these adequate powers on the chief to control conduct at meetings the Governor in Coun cil may in fact have excluded here any other implied grounds or methods for expulsion as a matter of procedure. But I need not decide that issue in view of my conclusion that the resolution in question is not one in relation to meeting proce dures but instead pertains to qualifications of a band member to be a member of council.
It is true that by section 25 the Council seems to have a large discretion in the creation and appoint ment of committees, and no doubt can appoint or remove council members as members of such com mittees if this is done in a proper way. Further, by section 31 the Council may make "such rules of procedure as are not inconsistent" with the Regu lations. I would simply make three observations about this power. First, it must be exercised in the form of rules. That is, the Council must adopt rules in a general, legislative, form which may then be applied to situations as they arise. This is the delegation of a legislative power which must be exercised legislatively and not on an ad hoc basis
as problems arise. 6 It is agreed by all parties that this Band has made no such rules. Secondly, such rules must be "of procedure" and not in respect of the qualifications for, or general conduct of, coun cil members. Thirdly, it is quite possible (although I need not decide) that any such rule which pur ported to add more criteria for expelling members from meetings would be inconsistent with section 23 of the Regulations. It might, however, be open to a band council to elaborate under section 31 a set of rules of procedure which would ensure more speedy disposition of business before the council by requiring prior notice of issues to be discussed, by limiting debate, etc., and if members of the band or of the council refused to follow the rules this might amount to the "improper conduct" or "dis- turbance" which would justify their expulsion from the meeting.
I will therefore make a declaration that the resolution adopted by the Mississaugas of the New Credit Band Council on June 13, 1988, as con firmed by that Council on June 27, 1988, is invalid as being beyond the jurisdiciton of the Council. As the plaintiff remains a duly elected member of the Council I see no reason for granting a mandatory injunction, as requested by him, requiring the defendants to reinstate him to all of his duties. He is already entitled to be treated as a full member of Council. The plaintiff has also asked for his reinstatement as a member of the three commit tees of Council on which he sat at the time of the purported suspension. The defendants have con tended throughout that whatever I might conclude about the validity of his suspension as a member of Council, the plaintiff's membership in Council committees was "not justiciable" because by sec tion 25 of the Regulations quoted above it is completely in the discretion of the Council as to whether a councillor is a member of any commit tee. In fact the Band Council here has never exercised its authority under section 25 to remove the plaintiff from the committees to which he was
6 See e.g. Attorney General of Canada v. Brent, [ 1956] S.C.R. 318; 2 D.L.R. (2) 503; Brant Dairy Co. Ltd. et al. v. Milk Commission of Ontario et al. [1973] S.C.R. 131; (1972), 30 D.L.R. (3d) 559.
appointed prior to his "suspension". Instead, the Council purported in effect to remove him as a member of Council. It has been assumed on all sides that this automatically removed him from the committees in question as he could not be a member of those committees without being a Council member. But as that resolution purporting to remove him from Council was invalid and is hereby set aside, the effect is to restore him to the position he was in on June 13, 1988, namely as a member of the Executive/Finance Committee, the Social Services Committee, and the Railway Land Claims Committee. If the Council wishes by proper means to change that situation it may do so under section 25 of the Regulations but it has not yet done so.
The plaintiff has also requested that I issue a mandatory injunction requiring the payment to him of honoraria for attendance at regular Council meetings and of the above-named committees since the date of his "suspension". The admitted facts quoted at the beginning of these reasons in paragraph 9(d) appear to confirm his attendance at the regular Council meetings of the dates men tioned there and I am advised by counsel that the parties agree that he has attended regular Council meetings since his suspension even though he has not been allowed to participate as a member. I am therefore going to order the payment to him of his honoraria for these meetings. There is no compa rable admission with respect to his attendance at committee meetings and I am not in a position to make a similar order in respect to them.
I should note that counsel for the defendants laid some stress on an alternative argument: that even if I should consider the defendants acted without authority, I should exercise my equitable discretion in refusing the declaration and the injunction on the grounds that the plaintiff did not come to Court with "clean hands". That is, he was the author of his own misfortune through his abrasive conduct. There is serious doubt that the "clean hands" doctrine even applies to the making
of declarations.' Moreover, it is properly appli cable only where a plaintiff is seeking the aid of the Court to help him make some unconscionable gain.' His unconscionable conduct, to preclude him from an equitable remedy, must be directly related to the very transaction before the Court. 9 The subject-matter of the present case is the unlawful action of the defendants in "suspending" the plaintiff. He is not relying on his own offensive behaviour as a justification for sitting on the Council. He had the right to do that, which he says the defendants unlawfully took from him. The mere fact that he may have provided Council with a motive for adopting this resolution does not relate his actions directly to this decision of a quasi-public body made without lawful authority. I therefore do not consider this an appropriate case for the exercise of discretion in their favour on the ground advanced by the defendants.
With respect to costs, the defendants contend that even if I find in whole or in part against them I should not award costs against them as this is a "case of first impression" involving an issue on which there is no jurisprudence directly on point. While it is true that there is no jurisprudence on point, it appears to me that the provisions of the Indian Act and the Regulations when carefully considered should have led the defendants to the same conclusion which I have reached, namely that they had no authority to take this extraordi nary step. The fact that there is no relevant juris prudence may only suggest that other councils have not imagined that they have such a power. Further, the defendants have persisted in their position for some eight months even though it would have been open to them, on further reflec tion, to have withdrawn their questionable resolu tion or to have treated it as a nullity. It is they who have chosen to deny the plaintiff the rights they claim for themselves as Council members and they
'Spry, I. C. F., The Principles of Equitable Remedies, 3rd ed London: Sweet & Maxwell, 1984, at p. 395.
8 Ibid., at pp. 392-395.
9 City of Toronto v. Polai, [1970] 1 O.R. 483 (C.A.), at pp. 493-494; result affd [1973] S.C.R. 38 [sub nom. Polai v. Corporation of the City of Toronto].
have persisted in this stance. As the plaintiff has in substance succeeded on all major issues I see no reason for departing from the normal practice of awarding him his costs.
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