Suspension of Salt River chief procedurally unfair, court finds

The extended suspension of Toni Heron as chief of Salt River First Nation – less than a month into her term – was procedurally unfair and unreasonable, a federal court has ruled.

In a decision on Tuesday, Justice Paul Favel granted Heron a judicial review of the band council’s October 13, 2022 decision to suspend her as chief for 60 days and subsequent decisions to extend that suspension.

“A suspension of an elected leader and an extension of such a suspension are serious matters which require a high degree of procedural fairness. SRFN did not discharge its duty,” he wrote.

The judge granted Heron compensation for the salary she would have received had she not been suspended, as well as $12,000 in legal costs.

Favel dismissed the First Nation’s request for judicial review of Heron’s October 18, 2022 decision to reschedule a special meeting to remove councillors Brad Laviolette and Kendra Bourke from office. Favel found the First Nation’s court challenge was premature and the First Nation had not received the approval of its membership, as required by its election code.

Heron was elected chief of the First Nation in September 2022 and six councillors were acclaimed. Things quickly soured: a dispute arose over whether the First Nation should hold a membership meeting about a bid to build a new fire centre, among other disagreements.

The political battle culminated in some councillors trying to remove Heron as chief and Heron attempting to remove Laviolette and Bourke from council.

According to the federal court decision, Heron wrote letters to Laviolette and Bourke on October 7, notifying them she planned to hold a special meeting on October 22 to remove them from office. She also scheduled an October 13 council meeting to discuss financial matters.

The two councillors said they then wrote a letter to Heron on October 11, challenging her authority to call the special meeting. They advised they planned to consider suspending Heron as chief at the October 13 meeting.

Some councillors had accused Heron of not fulfilling her duties as chief, among other allegations, which Heron disputed.

On the morning of October 13, the First Nation’s chief executive officer notified councillors that the day’s planned meeting would be cancelled as the financial officer could not attend. However, the court decision states, it is unclear whether all councillors received the notification as they still showed up.

Heron arrived later with the RCMP and told councillors the meeting was invalid. Councillors continued the meeting without Heron and passed a band council resolution suspending her from office for 60 days without pay. They decided Laviolette would serve as acting chief and cancelled the October 22 special meeting to remove Laviolette and Bourke.

On October 17, the court decision states Heron was at the First Nation’s office – unaware she had been suspended – when she was told Laviolette had called police because she was trespassing and given a copy of the resolution suspending her. The following day, Heron rescheduled the special meeting to remove Laviolette and Bourke from council for October 23.

That day, the federal court upheld council’s suspension of Heron as chief but did not stop her from holding the special meeting and voting to remove the two councillors from office. The federal court later determined the proceedings of that meeting were of no force or effect and Laviolette and Bourke could continue to carry on in their roles.

Heron filed for judicial review of her suspension and subsequent extensions, arguing the decisions were procedurally unfair. She alleged bias on the part of Laviolette and Bourke, that council failed to disclose evidence, and that inadequate notice had been given.

Council argued it provided Heron with at least 48 hours’ notice of her right to be at the October 13 meeting, said her bias argument was without merit, and that council did not owe a duty of fairness to Heron when it came to extensions of her suspension as it was not permanent.

Justice Favel sided with Heron, finding that the council’s decision to proceed with the October 13 meeting without Heron violated her right to procedural fairness and they failed to give her notice of extensions. He found that Laviolette and Bourke should not have participated in the vote to suspend Heron.

“It is clear that suspension decision was made, in part, in response to Chief Heron’s stated intention to call a special meeting to address her own concerns with the conduct of councillors Bourke and Laviolette,” he wrote.

The judge added it was difficult to assess whether council’s grounds for suspending Heron were reasonable as she was not in office for very long.

Cabin Radio approached Heron and the Salt River First Nation for comment. Heron, in a statement, said she was “very grateful and eager to resume her duties and responsibilities.”