Bellegarde v. Carry the Kettle First Nation

Bellegarde v. Carry the Kettle First Nation

The applicants raised a serious issue and likelihood of success because the removal votes lacked the quorum and the two‑thirds qualified majority required by the Election Act; irreparable harm was conceded and, weighing the balance of convenience and respect for the democratic choice of electors, a stay of the removals and the scheduled by‑election was warranted.

Citation
2023 FC 129
Parties
Applicant (councillor): Terrina Bellegarde; Applicant (councillor): Joellen Haywahe; Respondent (chief/councillor): Scott Eashappie; Respondent (councillor): Shawn Spencer; Respondent (councillor): Tamara Thomson; Respondent (band): Carry the Kettle First Nation
Court
Federal Court
Jurisdiction
Canada
Judgment Date
27 January 2023
Procedural Posture
Judicial Review of Removals From Office Under Custom Election Law / Motion for Interim Relief (stay of Removals and by Election) at Interlocutory Stage
Outcome
Motion granted in part: stay issued of the removals and the by‑election; other relief denied; costs awarded to applicants
Legal Topics
Removal of Councillors, Quorum and Qualified Majority, Interim Injunction / Stay, Procedural Fairness, Deference to Indigenous Decision‑makers
Source Language
English
Administrative Law Indigenous Law Election Law Judicial Review Removal of Councillors Quorum and Qualified Majority Interim Injunction / Stay Procedural Fairness +1 more

Case Brief

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Parties

Terrina Bellegarde

Applicant (councillor)

Joellen Haywahe

Applicant (councillor)

Scott Eashappie

Respondent (chief/councillor)

Shawn Spencer

Respondent (councillor)

Tamara Thomson

Respondent (councillor)

Carry the Kettle First Nation

Respondent (band)

Procedural Posture

Judicial Review of Removals From Office Under Custom Election Law / Motion for Interim Relief (stay of Removals and by Election) at Interlocutory Stage

Legal Issues

  1. 1 Whether Council had quorum under the Cega‑Kin Nakoda Oyate Custom Election Act to remove councillors
  2. 2 Whether the required qualified two‑thirds majority of remaining councillors voted to effect removals
  3. 3 Appropriate standard for granting interim relief in this context and application of the RJR test

Ratio Decidendi

The applicants raised a serious issue and likelihood of success because the removal votes lacked the quorum and the two‑thirds qualified majority required by the Election Act; irreparable harm was conceded and, weighing the balance of convenience and respect for the democratic choice of electors, a stay of the removals and the scheduled by‑election was warranted.

Court Disposition

Motion granted in part: stay issued of the removals and the by‑election; other relief denied; costs awarded to applicants

Orders

  • The removal of Councillors Terrina Bellegarde and Joellen Haywahe from the Council of the Carry the Kettle First Nation is stayed until the present applications for judicial review are finally determined.
  • The by‑election scheduled for February 3, 2023 to replace Councillors Terrina Bellegarde and Joellen Haywahe on the Council of the Carry the Kettle First Nation is stayed.