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COMMUNITIES AND GOVERNANCE - Self-governance - Councils - Resolutions and bylaws - Validity

Wednesday, July 28, 2021 @ 5:43 AM  

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Appeal by Key First Nation from the dismissal of its judicial review application. The appellant sought to set aside a resolution of its former band council that authorized the retention of a law firm and the subsequent decision to use band funds to settle the accounts rendered by the firm. The council retained the firm to resist a judicial review application that challenged the legitimacy of the 2016 band council election. The resolution authorized the firm to provide services up to $10,000. The firm was paid a total of $231,134. The judicial review application was successful, and the election was set aside. The court found the newly elected councillors engaged in vote buying. A new band council was elected in 2018 and commenced the within judicial review application. The Federal Court dismissed the application on the basis it was not commenced within the 30-day time limit and it was not in the interests of justice to grant an extension of time.

HELD: Appeal allowed. The Federal Court erred in the assessment of how and when the period under s. 18.1(2) of the Federal Courts Act was determined. The matter under review included the derivative acts to implement the resolution, which made the 30-day time limit under s. 18.1(2) not applicable. The error, however, did not affect the conclusion that the application was brought out of time. The decision not to extend the time was not sustainable considering the controlling jurisprudence, legislation and factual context. In the unique circumstances of the case, where the band sought declaratory relief directed to the collective interest of the band, the band established a direct interest in the proceeding and was entitled to standing. The interests of justice were served by having the court determine the validity of the resolution and the matters that cascaded from it. The resolution and the decisions that cascaded from it were set aside.

Key First Nation v. Lavallee, [2021] F.C.J. No. 635, Federal Court of Appeal, W.W. Webb, D.J. Rennie and Y. de Montigny JJ.A., June 23, 2021. Digest No. TLD-July262021006