Federal Appeal

Aboriginal Peoples

Power to suspend respondent by resolution alone not supported by inherent power

Appellants appealed Federal Court’s decision allowing judicial review. Appellant First Nation Council decided to suspend respondent without pay from his office as councillor. Council did so upon hearing of sexual assault charge against respondent, which remained pending. Council also received complaints that respondent sent explicit text messages and photographs to victim of sexual assault and to another woman. Council expressed decision in resolution. Respondent applied for judicial review. Federal Court found that council’s resolution failed to include particulars of respondent’s conduct it relied upon in making decision as required by Election Code, that decision to suspend respondent as councillor was not supported by any ground set out in Code and it expressed concern that council did not act in procedurally fair manner. Federal Court set aside resolution and restored respondent to office of councillor pending outcome of criminal trial. Appeal dismissed. Applicable standard of review was reasonableness. Council’s power to suspend respondent by way of resolution alone was not supported by inherent power. Even if custom or inherent power existed, Code ousted it. Federal Court wrongfully narrowed meaning of words in s. 101.3.7 of Code. Potential breadth of wording “sufficiently serious to warrant cause in all the circumstances” could be given full effect by council. It was open to council to take view that, if established by evidence, respondent’s conduct could fall within s. 101.3.7 of Code. However, council did not have power to suspend respondent from office by passing resolution alone. In doing so, it reached outcome that was outside range of acceptable and defensible. Decision to suspend respondent as councillor by way of resolution alone was unreasonable. Decision was quashed.

Orr v. Fort McKay First Nation (Oct. 30, 2012, F.C.A., J.D. Denis Pelletier J.A., Johanne Gauthier J.A., and David Stratas J.A., File No. A-450-11) Decision at 209 A.C.W.S. (3d) 207 was affirmed.  225 A.C.W.S. (3d) 584.

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