T-1999-88
Larry Sault (Plaintiff)
v.
Maurice LaForme, Graham King, George King,
Sylvia Sault, Carol Brant, Georgina Sault
(Defendants)
INDEXED AS: SAULT V. LAFORME
Trial Division, Strayer J.—Toronto, February 8;
Ottawa, February 13, 1989.
Native peoples — Band Council's resolution suspending
plaintiffs membership on Council, invalid — Council's reso
lution tantamount to judgment on plaintiffs qualifications —
Indian Act exhaustive as to council elections and meetings —
Addition of criteria to those in s. 28(2) of Act contrary to
Parliament's intention — Indian Band Council Procedure
Regulations not granting Council implied power to exercise
other disciplinary control over meetings on ad hoc basis.
Equity — "Clean hands" doctrine — Applicable only where
plaintiff seeking Court's aid to make unconscionable gain'—
Plaintiffs offensive behaviour not directly related to subject-
matter before Court — Not case for application of doctrine.
Practice — Costs — Lack of case law on point not prevent
ing award of costs against unsuccessful defendants — Careful
consideration of legislation should have led defendants to
Court's conclusion.
This is an action for a declaration that a resolution passed by
an Indian Band Council, purporting to suspend the plaintiff, a
Council member, without pay for the remainder of his two-year
term, is invalid. Injunctive relief is also sought to restore the
plaintiff to membership in the Council and on various commit
tees, and requiring payment of honoraria for attendance at
meetings thereof. The decision to suspend the plaintiff was
based on his inexperience, public criticism of Council decisions,
and willingness to support legal action against the Band or the
Council by a former staff member. The plaintiff argues that
neither the Indian Act nor the Indian Band Council Procedure
Regulations conferred on the Council jurisdiction to adopt the
resolution.
Held, the resolution was invalid. In view of that finding, no
injunction was necessary to reinstate the plaintiff. The plaintiff
was entitled to honoraria for attendance at Council meetings
only.
The immediate cause of plaintiffs expulsion from Council
was his intervention on behalf of a former staff member who
had left the Band after two days' work. The resolution was not
a means of maintaining good order, but rather a judgment that
the plaintiff was not a suitable person to be a Council member.
The Council had no power to disqualify the plaintiff on that
basis.
A Band Council is a "creature of the Indian Act". As such,
the Council only has those powers that are conferred on it by
the Act. The scheme of the Act with respect to council elections
and meetings is exhaustive. The grounds upon which the office
of a duly elected councillor can be considered vacant are set out
in subsection 78(2) of the Act. The addition of criteria such as
inexperience, controversial conduct, interference with respect to
re-employment of a former staff member, violates Parliament's
intention to exclude all criteria other than those set out in
subsection 78(2). Furthermore, the fact that the defendants did
not contemplate any steps to restore the strength of their
Council and fill the vacancy contravenes subsections 74(2) and
78(4) of the Act.
Neither section 10 nor 16 of the Indian Band Council
Procedure Regulations (which grant the Band Chief authority
to maintain order at meetings of the Council), nor section 23
(whereby a Band member can be excluded from meetings on
grounds of improper conduct), could be relied upon. None of
those provisions give the Council implied power to exercise
other disciplinary controls over meetings on an ad hoc basis. In
any event, the resolution in question does not relate to proce
dure but to the qualification of a Band member to be a member
of the Council. Nor was section 31 of the Regulations (which
grants Council power to make rules of procedure not inconsist
ent with the Regulations) applicable. (I) Section 31 delegates
to Council a legislative power; such a power cannot be exer
cised on an ad hoc basis; (2) the rules, if any, must relate to
procedure, not to qualification matters; (3) any rule purporting
to add more criteria for expelling members would be inconsist
ent with section 23 of the Regulations.
The Council's resolution being invalid, there was no need to
grant an injunction to restore plaintiff to membership in the
Council and on the committees. The plaintiff is entitled to be
paid honoraria for his attendance at Council meetings only, the
admitted facts confirming such attendance.
The defendants' submission, that this is a proper case for the
application of the "clean hands" doctrine with the result that
the relief sought should be disallowed, fails. The doctrine
applies only where a plaintiff is seeking the aid of the Court to
help him make some unconscionable gain. The plaintiff's
unconscionable conduct is not directly related to the transaction
before the Court, i.e. the unlawful decision of a quasi-public
body.
The defendants' contention, that no costs should be awarded
against them on the ground that this is a case of first impres
sion, also fails. While it is true that there is no case on point, a
careful consideration of the Act and the Regulations should
have led the defendants to treat the resolution as invalid.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 35.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Indian Act, R.S.C. 1970, c. 1-6, ss. 74(2), 78, 79, 80, 81,
83.
Indian Band Council Procedure Regulations, C.R.C., c.
950, ss. 10, 16, 23, 25, 25, 31.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Public Service Alliance of Canada v. Francis et al.,
[1982] 2 S.C.R. 72; Re Whitebear Band Council and
Carpenters Provincial Council of Saskatchewan et al.
(1982), 135 D.L.R. (3d) 128 (Sask. C.A.); Canatonquin
v. Gabriel, [1980] 2 F.C. 792 (C.A.); Attorney General
of Canada v. Brent, [1956] S.C.R. 318; 2 D.L.R. (2d)
503; Brant Dairy Co. Ltd. et al. v. Milk Commission of
Ontario et al., [1973] S.C.R. 131; (1972), 30 D.L.R. (3d)
559; City of Toronto v. Polai, [1970] 1 O.R. 483 (C.A.);
result affd. sub nom. Polai v. Corporation of the City of
Toronto, [1973] S.C.R. 38.
AUTHORS CITED
Spry, I. C. F., The Principles of Equitable Remedies, 3rd
ed. London: Sweet & Maxwell, 1984.
COUNSEL:
P. D. Amey and G. Pulham for plaintiff.
W. Henderson for defendants.
SOLICITORS:
Waterous, Holden, Amey, Hitchon, Brant-
ford, Ontario, for plaintiff.
LaForme, Henderson, Toronto, for defend
ants.
The following are the reasons for judgment
rendered in English by
STRAYER J.
Introduction
This is an action for a declaration that a resolu
tion of June 13, 1988 of the Mississaugas of the
New Credit Indian Band Council, purporting to
suspend the plaintiff without pay as a member of
that Council for the remainder of his term of
office, is invalid. Injunctive relief is also sought to
restore the plaintiff to membership in the Council
and on those committees on which he formerly sat,
and requiring payment to him of honoraria for
attendance since June 13, 1988 at meetings where
he has been denied the status of a member of
Council.
The defendants are the other members of the
Council still in office whom, the plaintiff has
confirmed, he is suing in their capacity as council
lors and not in their personal capacity.
Facts
Pursuant to a notice to admit facts served by the
plaintiff on the defendants, the latter have made
the following admissions:
1. That the Plaintiff was properly elected by acclamation to
the position of Band Councillor of the Mississaugas of the New
Credit Band on December 16, 1987.
2. That the term of office of Councillor was to be two years
commencing December 16, 1987 and ending December 15,
1989.
3. That the Defendants in this action constitute the remainder
of the elected Band Council and were sitting as Band Council
lors at all times material to this action.
4. That, by Motion No. 1 of the Special Council Meeting of
Thursday, December 17, 1987, the Plaintiff was appointed to
the following Administrative Committees of the Band Council:
(a) Native Horizons Committee;
(b) Executive/Finance Committee; and
(c) Social Services Committee.
5. That, by Motion No. 10 of the Regular Council Meeting of
Monday, April 11, 1988, the Plaintiff was appointed to the
Railway Land Claims Committee of the Band Council.
6. That Councillors receive a $100.00 honorarium for each
regular Council Meeting which they attend and $75.00
honorarium for each Committee Meeting which they attend.
7. That by Motion No. 8 of the Regular Council Meeting of
Monday June 13, 1988, Band Council purported to suspend the
Plaintiff from Band Council for the duration of his term.
8. That at the Regular Council Meeting of June 27, 1988,
Band Council reaffirmed the previous Motion purporting to
suspend the Plaintiff.
9. That since the purported suspension:
(a) The Plaintiff is not entitled to have the floor to speak to
any issues raised at Council or Committee Meetings;
(b) The Plaintiff's vote is not recognized at any Council or
Committee Meetings;
(c) The Plaintiff no longer receives regular mail related to
Council business and is denied further information nor
mally available to Councillors concerning Council
business;
(d) The Plaintiff has not received the regular honorarium
for his attendance at the Regular Council Meetings of
June 13, 1988, June 27, 1988, July 25, 1988 and Sep-
tember 26, 1988; and
(e) Council has purported to remove the Plaintiff from his
position on the Executive/Finance Committee, the
Social Services Committee and the Land Claims
Committee.
10. That the Plaintiff is not in breach of s.78(2)(a) of the
Indian Act.
11. That the Minister of Indian Affairs has not made a decla
ration pursuant to s.78(2)(b) of the Indian Act.
12. That, at the time of Mr. Sault's purported suspension, the
Band Council had not adopted any other Rules of Procedure
apart from those contained in the Indian Act and the regula
tions passed thereunder, which govern procedure at Council
Meetings.
The resolution in question was worded as
follows:
That this Council hereby suspends Larry Sault for the duration
of the term without pay.
At a subsequent meeting on June 27, 1988 after
hearing counsel for both Mr. Sault and the Band,
the Council confirmed this resolution.
The justification now given by the majority of
Council for this resolution is well summarized in
their statement of defence which alleges that the
action taken by Council was
... deemed appropriate and necessary due to the cumulative
effect of:
(a) the plaintiffs total lack of experience as a member of
Council prior to December of 1987;
(b) the plaintiffs contentious and offensive approach to the
conduct of Band business and his inability to establish a good
working relationship with staff;
(c) the plaintiffs continuing disruption of Council meetings,
resulting in frustration and ill-will as well as unduly prolong
ing meetings of Council;
(d) the plaintiffs public statements calculated to diminish
the reputations of other Councillors, employees of the Band
and to lower the New Credit community in the esteem of
neighbouring communities and other Indian reserves; and
(e) the plaintiffs willingness to support legal action against
the Band and/or Council by persons not members of the
Mississaugas of New Credit Band of Indians.
The real issue for me to decide is whether the
Council had the jurisdiction to pass this kind of
resolution. It is not for me to pass judgment on the
conduct of the plaintiff or the reaction thereto of
the defendants, except to the extent that this
enables me to characterize the decision taken by
Council. Suffice it to say that the evidence does
indicate that the plaintiff was abrasive in his deal
ings with both Band staff and other members of
the Band Council. He indulged in public criticism
of other members of Council and decisions which
they had taken or were about to take. He circu
lated his views by circular letters to members of
the Band and by interviews with the press. It
seems equally clear that other members of the
Council overreacted negatively to what even the
plaintiff now seems to recognize in part was
imprudent behaviour on his part. While that
behaviour does not appear to go much beyond
what is regarded as permissible, if sometimes dis
tasteful, conduct on the part of elected representa
tives elsewhere, it no doubt was disruptive in the
context of an Indian Band of nine hundred mem
bers with a Council consisting of a Chief and nine
members. The act of the plaintiff which finally
brought about the adoption of the resolution in
question involved an intervention by the plaintiff
on behalf of one Morgan Jacobs who had quit his
job with the Band after two days. After discussing
the matter with Jacobs, the plaintiff told the Band
administrator that he thought that if the Band did
not re-employ Jacobs the latter might have a cause
of action and that he, the plaintiff, would assist
Jacobs if necessary in pursuing it. As a result the
Band administrator re-employed Jacobs without
consulting other members of Council. While one
might question the judgment demonstrated by
both the plaintiff and the Band administrator in
these circumstances, it was the plaintiff's role
which was regarded as completely intolerable and
resulted in the resolution in question.
The plaintiff takes the position in these proceed
ings that the Band Council had no jurisdiction to
adopt such a resolution, because its effect was to
vacate his position on the Council for the remain
der of his term, namely from June 13, 1988 to
December 15, 1989. Briefly put, his position is:
that there is no such express power in the Indian
Act as it then stood' nor in the Indian Band
Council Procedure Regulations 2 adopted under
' R.S.C. 1970, c. I-6.
2 C.R.C., c. 950.
that Act; and that the Council therefore had no
such power as the scheme of the Act with respect
to council elections and council meetings is
exhaustive because a band council is a creature of
federal statute, and has no power not granted to it
under the statute. On the other hand the defend
ants argue that the resolution represents nothing
more than a suspension of the plaintiff from meet
ings of the Council and its committees, and that
any public body has the implied power to disci
pline its members in this way to enable it to carry
on its business. They further argue that the scheme
of the Indian Act and its Regulations is not
exhaustive in this respect and that, further, Indian
Bands can resort to traditional forms of govern
ment to the extent that the Indian Act does not
expressly preclude them. Some evidence was intro
duced to the effect that in the traditional govern
ment of the Mississsaugas of the New Credit
Band, before the Band was put under the election
system of the Indian Act (pursuant to what is now
section 74 of that Act) in 1924, councillors could
be recalled for a variety of reasons including gen
eral misconduct in the community. It was also
suggested that at that time there was no fixed
number of councillors.
It should be noted that the defendants made it
clear they are not invoking aboriginal rights or
section 35 of the Constitution Act, 1982 [Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.)] as a
basis for the resolution adopted by the majority on
June 13, 1988, because in their view that resolu
tion in no way conflicts with federal laws which
are silent on this point. Thus there is no need to
invoke aboriginal or constitutional rights as a jus
tification for overriding federal laws.
Conclusions
I have concluded that the resolution in question
was tantamount to expulsion of the plaintiff from
the Band Council. It is not disputed that the
resolution was intended to mean, and was so
understood by all parties, that the plainitff could
not participate as a member for the remaining
eighteen months of his term nor could he be paid
as other councillors are paid, namely by honoraria
of $100 for each Council meeting attended, and
$75 for each committee meeting attended. There is
no suggestion that this decision was to be subject
to review, that it has been reviewed, or that it will
be reviewed by Council during the remainder of
the plaintiff's term. No conditions were attached,
for example, to allow the plaintiff to return if he
would apologize to Council for his conduct at
meetings. Instead, it is clear that this decision was
taken by the majority of Council to a large extent
on the basis of the plaintiff's conduct outside of
Council meetings. Apart from other complaints
they had about him, mentioned above, concerning
his communications to the press and to members
of the Band generally, and the demands he made
on Band employees for the provision of informa
tion, it is clear that the immediate cause of his
ejection from Council was his interventions with
Morgan Jacobs and the Band administrator, Mark
LaForme. Thus the resolution cannot be charac
terized as simply a means of maintaining good
order in Council meetings. It was a judgment that
the plaintiff was not a suitable person to be a
Council member.
I am satisfied that the Council had no power to
disqualify the plaintiff in this manner from serving
as a member of Council. Without dealing more
discursively than necessary with the nature, func
tions, and powers of Indian band councils, it will
suffice if I consider those portions of the Indian
Act and of the Indian Band Council Procedure
Regulations which pertain to the election of coun
cil members and the conduct of meetings of band
councils. It has been authoritatively held that a
band council such as this "is a creature of the
Indian Act"' and this implies that such powers as
such a council has derive from that statute.
Indeed, it is this source of their powers which
makes council decisions suject to review in this
Court under section 18 of the Federal Court Act
' Public Service Alliance of Canada v. Francis et al., [1982]
2 S.C.R. 72, at p. 78. See also Re Whitebear Band Council and
Carpenters Provincial Council of Saskatchewan et al. (1982),
135 D.L.R. (3d) 128 (Sask. C.A.), at p. 133.
[R.S.C. 1970 (2nd Supp.), c. 10],' a jurisdiction
which has not been questioned by the defendants
in this action. This basis for band council powers
renders inappropriate most analogies with the
inherent powers of sovereign bodies such as Parlia
ment and legislatures. In the Indian Act as it stood
at the time of these events, section 74 empowered
the Minister to declare with respect to any band
that after a day to be fixed the chief and council
lors of that band are to be elected. It is common
ground that such an order was made with respect
to the Mississaugas of the New Credit Band in
1924. That section also provides for councillors to
be elected by a majority vote of the electors of the
band. Following some other provisions concerning
eligibility to vote and election procedures, section
78 provides as follows:
78. (1) Subject to this section, chiefs and councillors hold
office for two years.
(2) The office of chief or councillor becomes vacant when
(a) the person who holds that office
(i) is convicted of an indictable offence,
(ii) dies or resigns his office, or
(iii) is or becomes ineligible to hold office by virtue of this
Act; or
(b) the Minister declares that in his opinion the person who
holds that office
(i) is unfit to continue in office by reason of his having
been convicted of an offence,
(ii) has been absent from meetings of the council for three
consecutive meetings without being authorized to do so, or
(iii) was guilty, in connection with an election, of corrupt
practice, accepting a bribe, dishonesty or malfeasance.
(3) The Minister may declare a person who ceases to hold
office by virtue of subparagraph (2)(b)(iii) to be ineligible to be
a candidate for chief or councillor for a period not exceeding six
years.
(4) Where the office of chief or councillor becomes vacant
more than three months before the date when another election
would ordinarily be held, a special election may be held in
accordance with this Act to fill the vacancy.
Section 79 permits the Governor in Council to set
aside an election in the case of corrupt practices or
violations of the Indian Act in connection with the
election. Section 80 authorizes the Governor in
Council to make regulations with respect to "band
meetings and council meetings" and this the Gov-
4 Canatonquin v. Gabriel, [1980] 2 F.C. 792 (C.A.).
ernor in Council has done in the form of the
Indian Band Council Procedure Regulations' as
referred to above. There then follows in the Indian
Act the heading "POWERS OF THE COUNCIL".
Under this heading appear sections 81 and 83
which set out at some length specific by-law
making powers of councils.
It will be noted that in section 78 Parliament
has prescribed a term of two years for councillors
and has carefully specified grounds upon which the
office of a duly elected councillor can be con
sidered vacant. It is admitted in the present case
that none of those grounds apply here. Further,
subsection 78(4) provides that where the office of
a councillor becomes vacant more than three
months before a general election a by-election may
be held. One can see in this structure a desire by
Parliament to guarantee certain democratic rights
of the members of the band: namely that if they
once elect a member of council he is entitled to
serve, and they are entitled to be represented by
him, for two years subject to such contingencies as
him dying, being convicted of an offence, being
involved in a corrupt practice, or absenting himself
habitually from his duties. Only these specified
events or misdeeds justify, in the view of Parlia
ment, the vacating of his office. Yet the majority
of this Band Council has taken upon itself to add
to the criteria in subsection 78(2) such deficiencies
as inexperience, critical and controversial conduct,
disagreement with Band staff, imposition of work
on staff, unilateral interference by persuasion or
threats with respect to re-employment of a staff
member, and lengthily disputatious conduct at
meetings, as equally justifying what is in effect the
vacating of a councillor's office. In my view Parlia
ment intended to exclude all such criteria other
than those mentioned when it enacted in subsec
tion 78(1) that councillors were to hold office for
two years and that this was to be subject only to
the other provisions of section 78. To uphold the
action taken by the defendants here would be to
authorize the majority on band councils to sup
press dissent by removing from council at any time
5 Supra note 2.
in their statutory term of office those members
who offend the majority.
It will also be noted that the Act controls the
number of councillors and tries to ensure that
those offices are filled. Subsection 74(2) provides
that there shall be one councillor for every one
hundred members of the Band unless otherwise
ordered by the Minister. At the time in question
this meant that the Act required that there be nine
members of the New Credit Band Council. Fur
ther, subsection 78(4), as quoted above, provides
for a by-election to be held to fill a vacancy unless
the vacancy arises shortly before a regular elec
tion. In the present case the defendants have not
taken, nor do they contemplate, any steps to
restore the strength of their Council to nine mem
bers since the removal of the plaintiff. For this
reason also the resolution is clearly inconsistent
with the express provisions of the Act. (No reli
ance has been placed on the fact that the Minister
had approved, after the December 1987 election of
nine members, a future reduction to seven mem
bers. I can only assume that such reduction was
not to have effect until the next election at the end
of 1989.)
Nor can I find any implied authority for this
resolution in the Act or Regulations. While there
are numerous specific powers to make by-laws in
sections 81 and 83 none of these powers touch the
matter in question. Nor has the Band Council
acted by a by-law in removing the plaintiff from
office. The implications to be derived from the
Indian Band Council Procedure Regulations are
even more telling against the position of the
defendants. The most relevant sections are as
follows:
10. The presiding officer shall maintain order and decide all
questions of procedure.
16. (1) The presiding officer or any member may call a
member to order while speaking and the debate shall then be
suspended and the member shall not speak until the point of
order is determined.
(2) A member may speak only once on a point of order.
23. (1) The regular meetings shall be open to members of
the band, and no member shall be excluded therefrom except
for improper conduct.
(2) The presiding officer may expel or exclude from any
meeting any person who causes a disturbance at the meeting.
25. The council may appoint special committees on any
matters as the interests of the band may require.
31. The council may make such rules of procedure as are not
inconsistent with these Regulations in respect of matters not
specifically provided for thereby, as it may deem necessary.
It is clear that the chief, as presiding officer, is
authorized by sections 10 and 16 to maintain order
in a procedural sense at meetings of the council.
By section 23 members of the band can be exclud
ed from attending regular meetings only for
improper conduct and the chief may expel from
the meeting any person who "causes a disturb
ance". None of these provisions imply a power of
council as such to exercise other disciplinary con
trols over meetings on an ad hoc basis. By express
ly conferring these adequate powers on the chief to
control conduct at meetings the Governor in Coun
cil may in fact have excluded here any other
implied grounds or methods for expulsion as a
matter of procedure. But I need not decide that
issue in view of my conclusion that the resolution
in question is not one in relation to meeting proce
dures but instead pertains to qualifications of a
band member to be a member of council.
It is true that by section 25 the Council seems to
have a large discretion in the creation and appoint
ment of committees, and no doubt can appoint or
remove council members as members of such com
mittees if this is done in a proper way. Further, by
section 31 the Council may make "such rules of
procedure as are not inconsistent" with the Regu
lations. I would simply make three observations
about this power. First, it must be exercised in the
form of rules. That is, the Council must adopt
rules in a general, legislative, form which may then
be applied to situations as they arise. This is the
delegation of a legislative power which must be
exercised legislatively and not on an ad hoc basis
as problems arise. 6 It is agreed by all parties that
this Band has made no such rules. Secondly, such
rules must be "of procedure" and not in respect of
the qualifications for, or general conduct of, coun
cil members. Thirdly, it is quite possible (although
I need not decide) that any such rule which pur
ported to add more criteria for expelling members
from meetings would be inconsistent with section
23 of the Regulations. It might, however, be open
to a band council to elaborate under section 31 a
set of rules of procedure which would ensure more
speedy disposition of business before the council by
requiring prior notice of issues to be discussed, by
limiting debate, etc., and if members of the band
or of the council refused to follow the rules this
might amount to the "improper conduct" or "dis-
turbance" which would justify their expulsion
from the meeting.
I will therefore make a declaration that the
resolution adopted by the Mississaugas of the New
Credit Band Council on June 13, 1988, as con
firmed by that Council on June 27, 1988, is invalid
as being beyond the jurisdiciton of the Council. As
the plaintiff remains a duly elected member of the
Council I see no reason for granting a mandatory
injunction, as requested by him, requiring the
defendants to reinstate him to all of his duties. He
is already entitled to be treated as a full member
of Council. The plaintiff has also asked for his
reinstatement as a member of the three commit
tees of Council on which he sat at the time of the
purported suspension. The defendants have con
tended throughout that whatever I might conclude
about the validity of his suspension as a member of
Council, the plaintiff's membership in Council
committees was "not justiciable" because by sec
tion 25 of the Regulations quoted above it is
completely in the discretion of the Council as to
whether a councillor is a member of any commit
tee. In fact the Band Council here has never
exercised its authority under section 25 to remove
the plaintiff from the committees to which he was
6 See e.g. Attorney General of Canada v. Brent, [ 1956]
S.C.R. 318; 2 D.L.R. (2) 503; Brant Dairy Co. Ltd. et al. v.
Milk Commission of Ontario et al. [1973] S.C.R. 131;
(1972), 30 D.L.R. (3d) 559.
appointed prior to his "suspension". Instead, the
Council purported in effect to remove him as a
member of Council. It has been assumed on all
sides that this automatically removed him from the
committees in question as he could not be a
member of those committees without being a
Council member. But as that resolution purporting
to remove him from Council was invalid and is
hereby set aside, the effect is to restore him to the
position he was in on June 13, 1988, namely as a
member of the Executive/Finance Committee, the
Social Services Committee, and the Railway Land
Claims Committee. If the Council wishes by
proper means to change that situation it may do so
under section 25 of the Regulations but it has not
yet done so.
The plaintiff has also requested that I issue a
mandatory injunction requiring the payment to
him of honoraria for attendance at regular Council
meetings and of the above-named committees
since the date of his "suspension". The admitted
facts quoted at the beginning of these reasons in
paragraph 9(d) appear to confirm his attendance
at the regular Council meetings of the dates men
tioned there and I am advised by counsel that the
parties agree that he has attended regular Council
meetings since his suspension even though he has
not been allowed to participate as a member. I am
therefore going to order the payment to him of his
honoraria for these meetings. There is no compa
rable admission with respect to his attendance at
committee meetings and I am not in a position to
make a similar order in respect to them.
I should note that counsel for the defendants
laid some stress on an alternative argument: that
even if I should consider the defendants acted
without authority, I should exercise my equitable
discretion in refusing the declaration and the
injunction on the grounds that the plaintiff did not
come to Court with "clean hands". That is, he was
the author of his own misfortune through his
abrasive conduct. There is serious doubt that the
"clean hands" doctrine even applies to the making
of declarations.' Moreover, it is properly appli
cable only where a plaintiff is seeking the aid of
the Court to help him make some unconscionable
gain.' His unconscionable conduct, to preclude
him from an equitable remedy, must be directly
related to the very transaction before the Court. 9
The subject-matter of the present case is the
unlawful action of the defendants in "suspending"
the plaintiff. He is not relying on his own offensive
behaviour as a justification for sitting on the
Council. He had the right to do that, which he says
the defendants unlawfully took from him. The
mere fact that he may have provided Council with
a motive for adopting this resolution does not
relate his actions directly to this decision of a
quasi-public body made without lawful authority. I
therefore do not consider this an appropriate case
for the exercise of discretion in their favour on the
ground advanced by the defendants.
With respect to costs, the defendants contend
that even if I find in whole or in part against them
I should not award costs against them as this is a
"case of first impression" involving an issue on
which there is no jurisprudence directly on point.
While it is true that there is no jurisprudence on
point, it appears to me that the provisions of the
Indian Act and the Regulations when carefully
considered should have led the defendants to the
same conclusion which I have reached, namely
that they had no authority to take this extraordi
nary step. The fact that there is no relevant juris
prudence may only suggest that other councils
have not imagined that they have such a power.
Further, the defendants have persisted in their
position for some eight months even though it
would have been open to them, on further reflec
tion, to have withdrawn their questionable resolu
tion or to have treated it as a nullity. It is they who
have chosen to deny the plaintiff the rights they
claim for themselves as Council members and they
'Spry, I. C. F., The Principles of Equitable Remedies, 3rd
ed London: Sweet & Maxwell, 1984, at p. 395.
8 Ibid., at pp. 392-395.
9 City of Toronto v. Polai, [1970] 1 O.R. 483 (C.A.), at pp.
493-494; result affd [1973] S.C.R. 38 [sub nom. Polai v.
Corporation of the City of Toronto].
have persisted in this stance. As the plaintiff has in
substance succeeded on all major issues I see no
reason for departing from the normal practice of
awarding him his costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.