From band councils versus hereditary chiefs to #Vavilov analysis to disqualification of counsel

Da’naxda’xw First Nation v Peters, 2019 FC 1568

This is a case involving an elected band council and hereditary chiefs. It is a motion for interlocutory relief. Either party claims that one does not have authority to govern while claiming that they do have the authority to govern. Prior to this motion, the band council expressed a desire for an electoral council, filing for judicial review. At this motion, the hereditary chiefs request the original application to be dismissed and the band council request that the hereditary chiefs stop acting as band council, generally speaking. The judge dismissed either motion because failed to show clear and non-speculative irreparable harm. Both parties relied on harm that extended to their ability to govern the community but either harm failed to prove beyond speculation.

Zang v Canada (Citizenship and Immigration), 2020 FC 112

This case is an appealing a decision of an immigration officer using Vavilov analysis. The Vavilov analysis presumes a reasonableness standard unless there is a clear legislative intent to prescribe a different standard of review, and certain scenarios where the rule of law requires the application of the standard of correctness, such as constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies. The applicant sought a two-year work permit at a small company in Alberta as a CFO. The officer held that the applicant did not meet the legislative requirements under immigration law and declined the permit. The applicant argued that:

“(1) the Officer breached her right to procedural fairness by making credibility findings without offering the Applicant an opportunity to respond; and (2) erred in unreasonably failing to acknowledge important evidence concerning the Applicant’s work experience, English language skills, and her prospective employer’s support.”

The court held that the decision was on the insufficiency of the evidence to show that the applicant could meet the requirements of a CFO position in an Alberta company in small town construction. The court further held that the officer’s findings and conclusions are reasonable in light of the evidence or lack thereof in support of the original application.

Arcand v Alexander First Nation and Kurt Burnstick, 2019 CHRT 47

The First Nation filed a motion to have counsel who is representing the individual disqualified based on a conflict of interest in a case where a complainant is making sexual harassment allegations against the individual. The complainant filed a human rights complaint against the First Nation since the individual was employed by the First Nation (failing to provide a harassment-free workplace and on the basis of adverse differential treatment based on prohibited grounds). The parties agree that the counsel was initially retained by the First Nation and the individual to respond to complaints against them and drafted their initial responses. Counsel terminated all retainers with the First Nation but continued to act for the individual. The First Nation alleges that the counsel previously represented them in the matter and received confidential information, and as such, since the Respondents are in adverse interest, there is a conflict of interest (from representing the individual). The complainant agrees with the First Nation. The court relied on the long standing principle that administrative bodies are the “masters of their own procedures” to prevent abuse of its own processes. All parties accepted the jurisdiction of the tribunal. The test for disqualifying a lawyer is a two-part test:

  1. Did the lawyer receive confidential information attributable to a solicitor-client relationship with the opposite party; and 
  2. Is there a risk that such information will be used to the prejudice of the other party?

The tribunal agreed that the counsel may have received information from the First Nation that was essential to the evidence and legal strategy to be relied upon in its defence of the complaint. The tribunal inferred and held that the counsel did receive confidential information from the counsel and that a reasonable member of the public would conclude that there is a risk the information would prejudice the First Nation.

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