NATIVE PEOPLES |
Edgar v. Kitasoo Band Council
T-2160-02
2003 FCT 166, Lemieux J.
13/2/03
11 pp.
Applicant seeking interlocutory injunction to stay effect of Kitasoo Band Council resolution banishing applicant from Village--Resolution passed at in camera hearing--Band Council trying to address use, abuse of illegal drug substances --Reason to believe applicant trafficking in marijuana--As result of banishment applicant suspended from employment without pay--Applicant filed application for judicial review seeking to quash resolution on grounds of breach of natural justice because resolution enacted without notice and without providing opportunity to make submissions--Applicant must establish serious issue to be tried, irreparable harm, balance of convenience--Respondents conceded serious issue to be tried --Irreparable refers to nature of harm suffered rather than magnitude; it is harm which either cannot be quantified in monetary terms or which cannot be cured--In other words, if applicant denied injunction and wins at trial, can harm suffered be repaired?--Evidence clearly establishes irreparable harm--Forced separation from loved ones and exclusion from community, with attendant psychological and emotional stress, types of harm which cannot be remedied if applicant successful at trial--Balance of convenience requiring determination of which party will suffer greater harm from grant or refusal of stay of interlocutory injunction pending decision on merits--Public interest factor to be considered--Respondent's fear applicant will traffic in marijuana again if returns, speculation--Injunction issued staying Band Council Resolution until trial.