Federal Court

Aboriginal Peoples

Council retained discretion even if conflict of interest proven


Application for judicial review of council’s decision not to remove chief, or failure to make such a decision. Applicant argued council refused to exercise its jurisdiction and sought order removing chief for conflict of interest. Respondent was recognized as First Nation in 2010 and chief was elected at first election. Applicant alleged chief had conflict of interest as he continued to operate two corporations and alleged he was withholding cheques from oil companies. Public meeting was held on conflict of interest allegations and council commission legal opinions, which concluded there was no evidence to support conflict of interest allegations. Council announced it would wait two weeks before making decision and accept other evidence in meantime. Council had yet to render decision. Application allowed in part. Section 20(1) of Elections By-laws made it clear it was up to council to determine whether chief or other member had breached conflict of interest Guidelines and had to be removed. Section 20(2) gave council absolute, unfettered discretion. It would be entirely improper for court to rule on chief’s removal when council had not yet made decision. Even if conflict of interest allegations were proven, council retained discretion. However, applicant and all other members were entitled to decision and it had been almost one year since council committed to rendering one. Order of mandamus warranted requiring council to render decision within one month.

Orr v. Alook

(May 16, 2012, F.C., de Montigny J., File No. T-1356-11) 217 A.C.W.S. (3d) 514 (14 pp.).

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