Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction of the Federal Court to review suspensions under a First Nation’s custom election system was upheld.

• The Applicant’s two-month suspension lacked a reasonable basis under the applicable governance policies.

• Council relied on a harassment investigation that did not make findings about a confidentiality breach.

• The Applicant was denied procedural fairness by not being properly informed of the case she had to meet.

• Council did not have authority to suspend a councillor solely for breaching the harassment policy.

• The suspension decision was quashed and remitted for redetermination, with back pay awarded.

Facts and outcome of the case

The case arose from a decision by the Chief and Council of the Rainy River First Nations to suspend Cassandra Kaysaywaysemat, an elected councillor, for two months without pay. The suspension followed a harassment complaint made by an RRFN employee, alleging that Kaysaywaysemat had made inappropriate and critical remarks about the employee’s trust fund application in a conversation overheard in the office. A third-party investigator was engaged to assess whether the conduct breached the First Nation’s Workplace Harassment and Violence Prevention Policy. The investigation concluded that her comments likely constituted harassment, but it made no findings about a breach of confidentiality.

Despite this, the suspension letter issued to the Applicant stated the reason for her suspension as a breach of confidentiality. The Applicant was not given advance notice that confidentiality was at issue, nor was she given details or evidence about the alleged breach. She challenged the suspension by applying for judicial review in Federal Court.

The court found that it had jurisdiction to hear the case because the Chief and Council were exercising powers under a custom election system recognized by the Indian Act. It held that while the Governance Policy expressly allows for suspensions in certain circumstances—such as conflict of interest, drug use, or confidentiality breaches—those grounds must be interpreted narrowly. The harassment policy, by contrast, does not provide for suspending councillors.

Critically, the court found the decision to suspend Kaysaywaysemat was unreasonable. The suspension was based on a harassment report that never addressed confidentiality, and Council did not engage in a separate, meaningful assessment of whether any actual breach of confidentiality occurred. Additionally, the court concluded that procedural fairness had been violated. The Applicant had no clear notice of the allegations or a real opportunity to respond to them, a fundamental requirement for fairness in administrative decision-making.

As a result, the court allowed the judicial review, quashed the suspension decision, and ordered that the matter be sent back to Council for redetermination. The court also directed that the Applicant be reimbursed for the pay and benefits she would have earned during the two-month suspension. While costs were not immediately awarded, the Applicant was permitted to seek them through subsequent written submissions.