Executive Summary: Key Legal and Evidentiary Issues

• Chief Judy Desjarlais challenged her removal from office by four BRFN councillors, filing a judicial review application in October 2024.

• Whitelaw Twining LLP was disqualified from representing BRFN due to a conflict of interest arising from lawyer Malcolm Macpherson's prior confidential communications with Chief Desjarlais on the very governance issues at stake.

• The Court applied the MacDonald Estate v Martin test, finding confidential information was shared in a solicitor-client context and that continued representation would undermine public confidence in justice administration.

• Chief Desjarlais's judicial review was ultimately dismissed in Desjarlais v Yahey, 2025 FC 1992.

• An abuse of process finding was made against the Applicant for filing a last-minute injunction motion on the eve of the judicial review hearing.

• Costs were awarded to the Respondent Councillors and Respondent Council, with the Applicant ordered to pay $4,000 to each Respondent for the improper injunction motion, plus assessed costs for the judicial review under Column III of Tariff B.

Background and the removal of Chief Desjarlais

Chief Judy Desjarlais was elected as Chief of the Blueberry River First Nations (BRFN) on January 14, 2022, and also served as a director of Blueberry River Resources Ltd., an independent company formed to advance BRFN's economic interests. During her tenure, tensions arose with four councillors—Wayne Yahey, Shelley Gauthier, Troy Wolf, and Sherry Dominic—who began efforts to remove her from office as early as August 2023.

Pursuant to the Blueberry River Custom Election By-law, 2017, an independent investigator, Sugden McFee and Roos LLP (SMR), was appointed to investigate allegations of misconduct against the Applicant. The SMR report concluded that the evidence showed it was more likely than not that grounds for disciplinary action against the Applicant existed under section 184 of the By-law. On September 13, 2024, the four councillors removed Chief Desjarlais from office, and on October 15, 2024, she filed an application for judicial review challenging that decision.

The conflict of interest motion and disqualification of counsel

A significant preliminary issue arose when BRFN retained Whitelaw Twining LLP to act as its counsel on February 10, 2025, replacing Mitha Law Group. Chief Desjarlais immediately raised concerns about a conflict of interest because Malcolm Macpherson, a lawyer at Whitelaw, had previously provided legal services to BRFN while she was Chief.

Chief Desjarlais's evidence demonstrated that she discussed the issues she was having with the four councillors with Mr. Macpherson on several occasions in 2023 and 2024. She knew and trusted him as a lawyer and as a friend to both she and her husband. Even after retaining her own counsel at Mr. Macpherson's recommendation in October 2023, she continued to seek his advice, including seeking his comments on a public statement she posted on August 30, 2024. On September 18, 2024, five days after her removal from office, Mr. Macpherson contacted Chief Desjarlais by text, advising he had heard the news and asking whether she had time for a call; during a subsequent call, he offered his views concerning her removal.

Associate Judge Catherine A. Coughlan applied the two-part MacDonald Estate v Martin test for disqualifying counsel: first, whether the lawyer received confidential information attributable to a solicitor-client relationship relevant to the matter at hand; and second, whether there is a risk it will be used to prejudice the client. The Court found Chief Desjarlais met her burden, noting she was under no obligation to disclose the actual confidential information itself to seek protection from disclosure.

Whitelaw argued that Mr. Macpherson would be "ethically walled off" from the judicial review, but the Court found this inadequate. The only evidence from Whitelaw was the Jadis Affidavit, and nothing in that affidavit addressed the ethical wall; the only mention of it was in correspondence attached to Chief Desjarlais's affidavit. On April 10, 2025, the Court granted Chief Desjarlais's motion, disqualifying Whitelaw from representing BRFN and ordering BRFN to appoint new counsel within ten days.

The judicial review and its dismissal

The substantive judicial review was set down to be heard on an expedited basis on December 4 and 5, 2025, necessitated by the fact that the next BRFN election of Councillors was set down to be held on January 12, 2026, with the election of Chief to occur the following day. In Desjarlais v Yahey, 2025 FC 1992, Justice Cecily Y. Strickland dismissed the judicial review.

The Court noted that this was a very fact-specific determination of the appropriate disciplinary action to be imposed on the Applicant based on the SMR findings and the factors set out in section 199 of the By-law. The validity or constitutionality of the By-law was not at issue, nor did the case raise issues that go to the heart of the BRFN electoral system.

The last-minute injunction motion and abuse of process

On November 26, 2025, Chief Desjarlais filed a new application (T-4770-25) for judicial review challenging the decision of the Respondent Councillors setting the date for an election and brought a last-minute urgent motion seeking to stay the December 3, 2025, BRFN nomination meeting. By Order dated December 2, 2025, Justice McVeigh denied the requested injunctive relief as, in the circumstances, it was an abuse of process. Justice McVeigh also found that the cost to the court and to counsel in dealing with the injunction motion, on the literal eve of the judicial review, was "[a] waste of judicial resources [that] is untenable."

Costs determination and overall outcome

Justice Strickland's costs decision of January 15, 2026, addressed both the injunction motion and the judicial review. The Court rejected Chief Desjarlais's arguments that costs should be awarded to her in any event of the cause based on public interest considerations.

The Court noted that the Applicant's approach to the judicial review lacked focus and resulted in unnecessary time and effort in responding to the same. Her affidavit has 231 paragraphs and attaches 104 exhibits of approximately 1,094 pages of documents, and is perhaps most accurately described as sprawling, addressing many matters that are simply not relevant to the judicial review of the removal decision. The Applicant had also attempted to raise new issues that were not addressed in her Notice of Application and made evolving arguments that unnecessarily lengthened the proceedings.

For the injunction motion, the Court awarded a $4,000 costs award to the Respondent Councillors and to the Respondent Council. For the judicial review, costs were to be assessed under the mid-point range of Column III of Tariff B. The Respondent Council submitted a bill of costs totalling $19,958 for fees. Recalculating the Respondent Councillors' costs utilizing the mid-point range would reduce the fees to approximately $24,000; adding $10,395.52 for disbursements would result in a total of $34,385.92. The exact amounts were to be submitted to an assessment officer unless the parties reached mutual agreement on the bills of costs.