T-326-87
Council of the Huron-Wendat Nation (Plaintiff)
v.
Michel Laveau and Bruno Gros-Louis (Defen-
dants)
INDEXED AS: HURON-WENDAT NATION (COUNCIL) V. IAYEAU
Trial Division, Dubé J.—Quebec, April 22;
Ottawa, April 30, 1987.
Native peoples — Oral resignations of Chief and Councillor
at Council meeting constituting valid resignations within
Indian Act, s. 78(2)(a)(ii) — Act and case law silent re:
whether written resignation required — If legislator intending
to specify procedure would have done so — Defendants not
proving alleged custom of written resignations — Common law
requiring resignation be tendered in any fit manner where
legislation silent as to procedure — Resignations tendered in
fit manner and duly accepted by Council — Indian Act, R.S.C.
1970, c. I-6, s. 78(2)(a)(ii) — Code of Civil Procedure, Art.
223-233.
Judicial review — Equitable remedies — Declarations —
Action for declaration re validity of oral resignations of Indian
Chiefs appropriate as permitting arguments to be filed and
witnesses to be heard — Quo warranto application limited to
filing of affidavits — Plaintiff seeking statement of principle,
not simple divestiture of public position — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Construction of statutes — Indian Act silent re: whether
resignations of Chief and Councillors need be in writing —
Legislation governing certain elected bodies specifying resigna
tion procedures — If legislator intending specific procedure,
would have said so — Indian Act, R.S.C. 1970, c. I-6, s.
78(2)(a)(ii) — House of Commons Act, R.S.C. 1970, c. H-9, s.
6 — Cities and Towns Act, R.S.Q. 1977, c. C-19, ss. 58, 59
Municipal Code of Quebec, R.S.Q. 1977, c. C-27.1, Art. 271.
This is an action for a declaratory judgment regarding the
resignations of the defendants given orally at a Council meet
ing. The defendants subsequently informed the Council that
they intended to remain in their seats. The Council refused the
defendants the right to resume their duties, and adopted a
resolution recognizing the resignations as final and irrevocable.
The issue is whether the oral resignations are valid within
subparagraph 78(2)(a)(ii) of the Indian Act.
Held, the action should be allowed and the resignations held
to be valid.
The Act and case law are silent on whether, for such
resignation to be valid, it must be in writing. Other legislation
(House of Commons Act, Quebec's City and Towns Act and
Municipal Code of Québec) does specify certain procedures for
resignation. If the legislator had intended to specify a proce
dure, as for example by requiring that the resignation be in
writing, he would have said so.
The defendants did not prove the allegation that the custom
in the Huron-Wendat Nation is that resignation mentioned in
section 78 should be in writing. To establish such custom one
would have to present persuasive testimony from historians or
patriarchs of the Nation.
In the The County of Pontiac case, the Superior Court fell
back on the common law which required that such a resignation
be made in any fit manner when the Code did not provide a
procedure for resignation. The two defendants tendered their
resignations in a fit manner, the resignations were duly accept
ed by the Council and the minutes of the relevant meetings
attest that these resignations were made.
Quo warranto issues directly to a person holding a public
position without right for the purpose of removing him from
that position. An action for a declaratory judgment was fully
justified since it enabled arguments to be filed and witnesses to
be heard, whereas an application for quo warranto would be
limited to the filing of affidavits. Additionally the plaintiff was
seeking a statement of principle, not simple divestiture of a
public position.
CASES JUDICIALLY CONSIDERED
APPLIED:
The County of Pontiac v. Ross (1890), 17 S.C.R. 406,
affg Corp. of County of Pontiac v. Pontiac Pacific
Junction Railway Co. (1888), 11 L.N. 370 (S.C. Aylmer
(Dist. of Ottawa)).
COUNSEL:
Jean Petit for plaintiff.
Richard Binet for defendants.
SOLICITORS:
Corriveau, Bouchard, Corriveau & Associés,
Québec, for plaintiff.
Croteau, Binet et Gosselin, Québec, for
defendants.
The following is the English version of the
reasons for judgment rendered by
DUBÉ J.: The action at bar is seeking a declara-
tory judgment regarding the resignations of Chief
("Grand Chief') Michel Laveau and Councillor
("Deputy Chief') Bruno Gros-Louis, given orally
at a meeting of the Council of the Huron-Wendat
Nation on October 7, 1986.
The two defendants were elected to their respec
tive positions on September 5, 1986. The minutes
of the aforesaid meeting report the said resigna
tions as follows:
[TRANSLATION] In concluding, Grand Chief Laveau
announced at 10:35 am that this was the last meeting he would
be presiding over as Grand Chief of the Huron-Wendat Nation
and that he was officially tendering his resignation. He would
nevertheless continue to preside over the meeting until its end.
He added that his political career was over and that it was
important for his resignation to be regarded in a positive light.
He concluded by saying that his decision was irrevocable.
WORD BY THE GRAND CHIEF
After tendering his official resignation as Grand Chief of the
Huron-Wendat Nation, Mr. Michel Laveau thanked all the
deputy chiefs for the three meetings he had presided over with
due order and respect. He said he was pleased in general with
the matters resolved.
The Grand Chief told the Deputy Grand Chief that the reasons
for his resignation were personal, but it was important for him
to step down as he did not wish any further involvement with
local politics and would henceforth be spending time with his
family.
Chief Bruno Gros-Louis also tendered his official resignation as
Deputy Chief of the Huron-Wendat Nation Council, saying he
had two major projects in mind that he wanted to work on, and
he concluded by wishing all the Deputy Chiefs of the Huron-
Wendat Nation Council the best of luck.
The six (6) remaining Deputy Chiefs, though disappointed at
the irrevocable decision by the Grand Chief of the Huron-Wen-
dat Nation, Mr. Michel Laveau, and the Deputy Chief of the
Huron-Wendat Nation Council, Mr. Bruno Gros-Louis, accept
ed the two (2) resignations and sincerely thanked the two
resigning Chiefs, wishing them the best possible luck in future.
The two defendants subsequently changed their
minds and informed the Council by letter on Octo-
ber 16 and 17 that they intended to remain in their
posts. The first two paragraphs of the letter from
the defendant Laveau indicated his intentions:
[TRANSLATION] As decided at the discussions at the meeting
of October 7, 1986, it was agreed that I would send you a
formal letter of resignation.
On reflection, this is to inform you that contrary to what you
were told verbally I confirm that I will continue to sit as Grand
Chief of the Council of the Huron-Wendat Nation.
At its meeting on October 20, 1986 the Council
nevertheless refused the defendants "the right to
resume" their duties. On October 31, 1986 the
Council adopted resolution 1423 recognizing the
two defendants' resignations as "final and irrevo
cable".
At the hearing of this case the Council secretary
testified that her minutes are an accurate account
of the events which took place at the meeting of
October 7 and at subsequent meetings. Further,
the defendants did not challenge the minutes by
improbation pursuant to Articles 223-233 of the
Code of Civil Procedure.
The two defendants, for their part, alleged that
they resigned because of the lack of respect of
other members of the Council toward the Grand
Chief. He felt completely frustrated by the hostile
attitude of the other members. He said that he
"lost control" and resigned. He regained control of
himself in the next few days and thought he should
return to his position.
It is not my function to decide whether the
defendants' resignations were justified. My role is
limited to deciding whether those oral resignations,
contained in the minutes of the meeting, are valid
resignations within the meaning of subparagraph
78(2)(a)(ii) of the Indian Act [R.S.C. 1970, c.
I-6]:
78....
(2) The office of chief or councillor becomes vacant when
(a) the person who holds that office
(ii) dies or resigns his office, or
The defendants alleged that, for such a resigna
tion to be valid, it must be made in writing. The
above-cited Act and the applicable case law are
silent on the point.
However, other legislation does specify certain
procedures for resignation. For example, the
House of Commons Act [R.S.C. 1970, c. H-9]
provides in section 6 that any Member may resign
his seat by giving notice of his intention to resign
in his place in the House (in which case the notice
is entered by the Clerk in the journals of the
House), or by sending his notice to the Speaker in
writing.
The Cities and Towns Act [R.S.Q. 1977, c.
C-19] of the Province of Quebec provides in sec
tions 58 and 59 for a resignation signed by the
person resigning (the mayor or a councillor). The
Municipal Code of Québec [R.S.Q. 1977, c.
C-27.1] provides in Article 271 that the mayor or
any councillor may resign his seat by transmitting
his resignation signed by himself to the secretary-
treasurer of the municipality.
In his defence argument counsel for the defen
dants alleged that the custom of the Huron-Wen-
dat Nation is that the resignation mentioned in
section 78 of the Act should be in writing. How
ever, he did not call any witnesses to prove such a
custom apart from the two defendants.
Certain extracts from the minutes of previous
meetings of the Council and some letters taken
from the Council's files show that Petit Chief
Roch Sioui resigned by letter on May 25, 1982,
Petit Chief Benoit Picard resigned by letter on
January 9, 1985 and Deputy Chief Marie-Paule
Gros-Louis resigned by letter on April 22, 1985,
the defendant Michel Laveau himself having
resigned by letter on May 6, 1985 (his second of
three resignations).
Further, it appears from the minutes of
October 6, 1969 that the defendant Laveau
"resigned due to pressure of work" (his first resig
nation). There is no letter of resignation from him
in the Council's files. Mr. Laveau honestly admit
ted that he did not remember whether he resigned
in writing on that occasion.
I cannot regard this evidence alone as establish
ing a custom. In my view, one would have to go
back much further and to present persuasive tes
timony from historians or patriarchs of the Nation.
In a judgment dating from 1889, The County of
Pontiac v. Ross,' the Supreme Court of Canada
has already discussed the validity of a verbal resig
nation by the Warden of Pontiac County (an
elective position, contrary to what was suggested
by counsel) 2 at a special session of the Council, a
' (1890), 17 S.C.R. 406.
Z Ibid., at p. 410, and Municipal Code [S. of Q. 1870, 34
Vict., c. 68], Art. 248.
resignation which was duly entered in the minutes
of the said session. Like that of the mayor, this
position was governed by the Municipal Code in
effect at the time. Article 342 provided that the
position of mayor became vacant "when the resig
nation of such mayor is accepted by the council",
without further formalities. The Superior Court
applied this rule by analogy to the Warden of the
county.
The Supreme Court held that the resignation
was valid and the election of his successor was
also.
As mentioned above, the Indian Act provides no
procedure for the resignation of a Chief or a
Councillor. If the legislator had intended to specify
a procedure, as for example by requiring that the
resignation be in writing, he would have said so.
In the above case of Corp. of County of Pontiac
v. Pontiac Pacific Junction Railway Co.' the Su
perior Court discussed at first instance the fact
that the Code provided no procedure for resigna
tion. It accordingly fell back on the common law,
which simply required that such a resignation be
made in any fit manner (at pages 372-373):
... The code mentions no mode by which the resignation of a
mayor or of a warden should be made. We must therefore refer
to the common law; and under its provisions a resignation,
unless a special mode is indicated, can be made in any fit
manner. Dillon, in his work on municipal corporations, vol 1,
No. 224, says: "If the charter prescribes the mode in which the
resignation is to be made, that mode should of course be
complied with .... If no particular mode is prescribed, neither
the resignation nor acceptance thereof need be in writing or in
any form of words." And Angell and Ames, No. 433, say:
"Where neither the charter nor by-laws prescribe any particu
lar mode in which the members may resign their rights of
membership, and their resignation be accepted, such resigna
tion and acceptance may be implied from the acts of the
parties .... To complete a resignation, it is necessary that the
corporation manifest their acceptance of the offer to resign,
which may be done by an entry in the public books." It is
moreover not necessary that the code should provide that a
warden has the right to resign, and that the council may accept
his resignation, as the right to appoint an officer always implies
the right to accept his resignation and to name his successor.
Dillon, in the section above referred to, says: "The right to
accept a resignation is a power incidental to every corpora
tion .... The right to accept the resignation of an officer is
incidental to the power of appointing him." And Angell and
Ames, No. 433, say: "The right to accept a resignation passes
( 1888), 11 L.N. 370 (S.C. Aylmer (Dist. of Ottawa)).
incidentally with the right to elect." In this case the resignation
of Mr. Poupore was made verbally, and the county council at
its next meeting ordered that an entry of his resignation be
made on its minutes; and this was duly done.
As regards the form in which the resignation of a mayor or a
warden can be made, we have, it is true, no rule in the code; but
we have rules in our statutes for the resignation of a member of
the Legislative Assembly. A member can resign either in
writing, or verbally in his place in the House, and if he resigns
from his seat in the House, the clerk makes an entry of his
resignation in the journals. This is exactly what took place in
this case; and in the absence of all enactment as to the mode
and form for the resignation of a warden, this mode and form
ought surely to be allowed by analogy to be sufficient.
The two defendants in the case at bar tendered
their resignations in a fit manner, the resignations
were duly accepted by the Council and the minutes
of the relevant meetings attest that these resigna
tions were made.
Finally, counsel for the defendants alleged that
the plaintiff had sought the wrong remedy under
section 18 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10]: it should have proceeded by a
writ of quo warranto and not a declaratory judg
ment. It is true that a quo warranto issues directly
to a person holding a public position without right
for the purpose of removing him from that posi
tion. In the case at bar, however, an action for a
declaratory judgment was fully justified since it
enabled arguments to be filed and witnesses to be
heard, whereas a simple application for quo war-
ranto would be limited to the filing of affidavits.
Additionally, the plaintiff was seeking a statement
of principle, not simply divestiture of a public
position. In any case, I would not have hesitated to
allow whatever amendments were necessary so
that the action justified by the circumstances could
be brought.
The action is accordingly allowed. The resigna
tion of the two defendants as Chief ("Grand
Chief") and Councillor ("Deputy Chief") are held
to be valid, and the Court rules that resignation
from the position of Chief or Councillor under
subparagraph 78(2)(a)(ii) of the Indian Act can
be made orally at a Council meeting.
Judgment for the plaintiff with costs and
disbursements.
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.