Agawa v. Batchewana Band
T-764-98
Tremblay-Lamer J.
16/10/98
11 pp.
Judicial review of motion passed by Band Council allowing Noel Syrette to rescind letter of resignation-Syrette, other councillors elected December 8, 1996-On January 12, 1998 Syrette submitting undated letter of resignation-Not attending next three regularly scheduled Council meetings-Council ceased paying to him honorarium paid to councillors-On March 9, 1998 Council passing resolution acknowledging Syrette's decision to rescind undated letter of resignation-Motion to rescind letter of resignation ultra vires-Syrette abandoned position-Robert's Rules of Order, Toronto: Coles, 1980, providing duties of position not abandoned until resignation accepted, or at least until reasonable opportunity for it to be accepted-That Indian Act, s. 78(2)(b)(ii) permitting Minister to declare vacant position after councillor missing three meetings suggesting three meetings constituting "reasonable opportunity" for Council to accept resignation-That Council stopping payment of honorarium, inviting Syrette to attend Council meeting as guest, allowing him to miss three meetings following resignation strongly suggesting Council accepting, or at least acquiescing in, Syrette's decision to resign-Obiter dicta: s. 78(2)(a)(ii) providing office of councillor vacant when incumbent resigning-Neither Act nor Regulations specifying procedure for resignation of Band Councillor-Where no procedure for resignation provided, must turn to common law (Corp. of County of Pontiac v. Pontiac Pacific Junction Railway Co. (1888), 11 L.N. 370 (Que. S.C.), requiring corporation to manifest acceptance of offer to resign by entry in public books-Acceptance merely procedural requirement-Case law not giving Council discretion to accept, reject resignation as would extend acceptance beyond procedural requirement, create discretionary powers not specified in Act-Sault v. LaForme, [1989] 2 F.C. 701 (T.D.) confirming Band Council creature of statute, powers limited to those found in statute-Corollary to where Council not having authority to declare Councillor's position vacant for unacceptable conduct, neither does it have authority to force Councillor to stay in position once tendering resignation-Acceptance" meaning Council in receipt of resignation; Syrette's resignation not effective until Council acknowledging it; as soon as Council acknowledging receipt of resignation, i.e. when it placed letter on January 19, 1998 agenda, Syrette's seat on Council vacant-Indian Act, R.S.C., 1985, c. I-5, s. 78(2)(a), (b).