Date: 20060620
Docket: T-2200-05
Citation: 2006 FC 778
Ottawa, Ontario, June 20, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
SWEETGRASS FIRST NATION
Plaintiff(s)
and
LORI GOLLAN, VIRGINIA FAVEL
and MYRON PASKEMIN, in their own
capacities and as purporting
to act as the Election Tribunal of
Sweetgrass First Nation
Defendant(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1] At the core of this dispute is an election of the Chief and the Band Council which took place on November 13, 2005. When this proceeding was commenced, the Plaintiff, Sweetgrass First Nation (Sweetgrass), sought both declaratory and injunctive relief to prevent the Defendants, Lori Gollan, Virginia Favel and Myron Paskemin, from continuing to act as the members of the Band's Election Tribunal (Tribunal). Sweetgrass now seeks to replace two of the Defendants (Lori Gollan and Myron Paskemin) with its own nominees to the Tribunal, namely Robert Pelton, Q.C. and Sylvia Weenie. In order to preserve the status quo, an injunction was issued in favour of the Plaintiff by Justice Simon Noël on January 12, 2006 that was to continue in force until the determination of this proceeding on the merits. That injunction prevented the Tribunal from acting under its mandate to review the election which had been contested by one of the unsuccessful candidates.
[2] Although this proceeding was started as an action, the parties agreed during the pre-trial conference that it could be as effectively and more efficiently resolved as an application for judicial review. Counsel for the parties confirmed that understanding when the matter came before me for argument in Saskatoon on May 15, 2006.
[3] In the course of his submissions, counsel for Sweetgrass acknowledged that no relief was being sought as against the Defendant, Virginia Favel. He conceded that Ms. Favel was properly appointed to the Tribunal and should continue to serve in that capacity. Sweetgrass continues, however, to challenge the right of the other two Defendants to sit as members of the Tribunal, albeit that it pressed the point more assertively with respect to Ms. Gollan than with respect to Mr. Paskemin. Sweetgrass contends that Ms. Gollan is disqualified from sitting on the Tribunal because of bias and because of appointment irregularities. In the case of Mr. Paskemin, it is argued that his appointment was irregular and, therefore, cannot be maintained.
The Electoral Process
[4] In 1995, the Minister of Indian Affairs and Northern Development amended the Indian Bands Council Election Order dated December 14, 1989 to authorize Sweetgrass to conduct its elections for Chief and Council in accordance with its custom and as codified by the Sweetgrass Cree Nation Elections Act (now called the Sweetgrass Band Election Act and referred to herein as "the Act").
[5] The Act provides a comprehensive description of election procedures for the Band and includes a mechanism for challenging an election where sworn allegations of corruption or other election irregularities are brought either by a candidate or by a voter.
[6] A key component of the election appeal process is the appointment of the Tribunal which has the authority to conduct an investigation into an election and to prepare a report to the Band Council outlining its findings. The Act also contemplates a formal public hearing to be convened by the Tribunal after it has completed its own internal investigation. At that hearing, the Tribunal is directed to "hear and consider all manner of evidence that it deems relevant to the appeal". Thereafter, the Act requires the Tribunal to meet and to make an appropriate recommendation to the Chief and Council. Where the Tribunal finds that the election of a candidate or candidates has been tainted by corruption, by a material irregularity or by ineligibility, its findings are binding upon the Chief and Council (Article 4 N(5)). In such circumstances, a re-election is required. Needless to say, the authority of the Tribunal to effectively declare a Band election to be invalid confers upon it a daunting and significant responsibility.
[7] The Act also establishes the process by which members of the Tribunal are to be selected. It is clear that the Band Council in place before the election is responsible for putting the election process in motion including the selection of two of the three Tribunal representatives. The third member of the Tribunal is named by the person who lodges an appeal of the election.
[8] Many of the steps required for a Band election and for an appeal from an election are governed by time limits. For example, an election must be called within the last six (6) months of the Council's final year in office (every second year) but fixed no earlier than the fifteenth (15th) day of the penultimate month in office and no later than seven (7) days before the second anniversary date in office. The Tribunal also faces a number of time requirements for completing its mandate including the holding of a public appeal hearing within thirty (30) days following the filing of an election appeal.
[9] The Tribunal Chair and the second member are appointed by the Band Council during an election declaration meeting which must be convened not less than ninety (90) days prior to the election date. Also to be named at that meeting are the electoral officers.
[10] Some effort has been taken to ensure the independence of members of the Tribunal. For example, the Tribunal Chair must be a solicitor but cannot be an elector or the spouse or immediate family member of an elector. A preference for selecting elders to the other two Tribunal positions is stated. Although the desire for independence, objectivity and fairness by the Tribunal is clearly evident, the Act does not purport to exhaustively identify all potential situations of conflict in the selection of its members. Furthermore, the Act is completely silent with respect to the problem encountered here, which is how the Band should deal with an allegation of bias on the part of a Tribunal member and where that member declines to step down. The Act is also silent in dealing with the issue of replacing a member of the Tribunal or an electoral officer who may decide to withdraw or who is placed in a position of conflict by the later nomination of a family member to run for election.
Background to the Election
[11] On Thursday, August 18, 2005, the Chief and Council for Sweetgrass convened a regular meeting. The Minutes of that meeting reflect the transaction of a number of business items including the call of a Band Election for November 13, 2005. The Minutes also disclose the selection of the Defendant, Lori Gollan, as Tribunal Chair, along with Fred Paskemin as the second member of the Tribunal. At that point Ms. Gollan was legal counsel to the Band and she was in attendance at the meeting. Ms. Gollan requested a one thousand-dollar retainer ($1,000.00) for her services as Tribunal Chair, to be returned to Sweetgrass if no appeal was launched from the election results.
[12] On August 19, 2005, Fred Paskemin withdrew from the Tribunal and the Council replaced him with Sylvia Weenie.
[13] On October 28, 2005, the Band held its election nomination meeting. Six (6) candidates sought election as Chief including the then-incumbent, Rod Atcheynum (Chief Atcheynum), and the current Chief, Wayne Standinghorn (Chief Standinghorn). Nineteen (19) candidates were nominated to run for Council, one of whom is Sylvia Weenie's son, Quentin Weenie. Chief Standinghorn is Sylvie Weenie's adopted brother.
[14] Because of Ms. Weenie's close family connection with two (2) of the election candidates, Band Council appointed Myron Paskemin in her stead as a member of the Tribunal. That decision was purportedly made by a Council resolution passed at a meeting on November 8, 2005 but no signed copy of the Band Council Resolution (BCR) was located in the Band Office. A signed copy of the November 8, 2005 BCR was, however, provided by Ms. Gollan on November 29, 2005. The fact that Ms. Weenie was replaced as a Tribunal member is also verified in the recitals to a BCR executed by the current Chief and Council on November 18, 2005. That BCR recital states in part:
AND WHEREAS by resolution made 18 Aug 2005, the Chief and Council of Sweetgrass First Nation resolved to appoint Fred Paskimin [sic] as elector to sit on the election tribunal.
AND WHEREAS on 19 Aug 2005, Fred Paskiman [sic] declined his appointment as elector to sit on the election tribunal.
AND WHEREAS by resolution made 19 Aug 2005 the Chief and Council of Sweetgrass First Nation resolved to appoint Sylvia Weenie as elector to sit on the election tribunal.
AND WHEREAS on 8 Nov 2005, the Chief and Council of Sweetgrass First Nation resolved to appoint Myron Paskunin [sic] as a second elector to sit on the election tribunal.
[emphasis added]
[15] The above-noted BCR went on to purportedly remove the Defendants, Lori Gollan and Myron Paskemin, as Tribunal members and to replace them respectively with Robert Pelton, Q.C. (a respected and well-known lawyer from Regina) and with the aforementioned Sylvia Weenie. It is noteworthy that there is no evidence in the Record that Ms. Weenie, or anyone else, objected to her removal as a member of the Tribunal at the time she was replaced by Myron Paskemin, and there is no indication from her as to whether she was prepared to accept re-appointment to the Tribunal pursuant to the above-referenced Council resolution.
[16] The Sweetgrass Band elections did proceed on November 13, 2005 as planned, and Mr. Standinghorn was elected as Chief.
[17] On November 16, 2005, one of the failed candidates for Band Council, George Atcheynum, initiated an election appeal under the Act. He requested that Virginia Favel, an elder of Sweetgrass, act as his nominee to the Tribunal pursuant to Article N(3)(c) of the Act and she agreed. At the point of the initiation of the election appeal, the Tribunal consisted of Lori Gollan, Virginia Favel and Myron Paskemin.
[18] Shortly after the election, Ms. Gollan's retainer as legal counsel to the Band was terminated. On November 22, 2005, Ms. Gollan was informed that the incoming Band Council had removed her as Tribunal Chair to be replaced by Robert Pelton, Q.C. While Ms. Gollan agreed to transfer carriage of her files as legal counsel to the Band to the newly appointed legal counsel, she declined to withdraw from her role as Tribunal Chair. She pointed out that the Tribunal "operates independently of Band Chief and Council", and that the incoming Chief and Council had no authority to rescind her appointment made by the previous Chief and Council.
[19] At this point an obvious impasse arose. The Tribunal pressed forward and scheduled a public meeting to hear additional evidence pertaining to the election appeal. Unfortunately, the Tribunal neglected to inform legal counsel for Sweetgrass about the public meeting and he was naturally perturbed by that oversight. For its part, the Tribunal's attempts to post notices of this meeting met with some resistance and when it did attempt to convene the meeting, it was served with the interim injunction which was issued by this Court on December 16, 2005.
[20] It is also of some interest that a lawyer in Ms. Gollan's firm commissioned some of the affidavits prepared on behalf of the election appellant. Ms. Gollan's affidavit described this as a simple "courtesy". There is no indication one way or the other whether anyone in Ms. Gollan's office assisted in the drafting of that documentation.
Ms. Gollan's Involvement
[21] When Ms. Gollan was appointed to the Tribunal, she was also under retainer from Sweetgrass to act as its legal counsel. In that latter capacity, she had provided extensive legal services and her accounts for 2005 were placed before me as part of the Record. A review of those legal accounts rendered by Ms. Gollan to Sweetgrass leading up to the Band election indicates that she also provided legal advice to Chief Atcheynum in his personal capacity. This included the joint representation of Chief Atcheynum and Sweetgrass in litigation against a number of third parties, including Battlefords Tribal Council. While it is clear that Ms. Gollan did not have primary carriage of that litigation on behalf of Sweetgrass and Chief Atcheynum, she does acknowledge in her affidavit that her role was considerably larger than acting as a mere local agent for lead counsel. In fact, she is named as one of the counsel of record for the legal proceeding, albeit in a subordinate capacity. Ms. Gollan billed Sweetgrass directly for this legal work and her legal fees for this litigation constitute a significant percentage of the total fees for 2005 charged to Sweetgrass.
[22] A review of Ms. Gollan's fee accounts also discloses that Chief Atcheynum and Chief Standinghorn, were adversaries. There are a number of references to consultations between Ms. Gollan and Chief Atcheynum where Chief Standinghorn was a topic of discussion, including a meeting where the following billing entry is noted:
Meeting with client Rod and Lawrence re potential liable [sic] suit a/g Wayne Standinghorn, BTC [Battlefords Tribal Council], and the Radio Station.
[23] Another entry for August 25, 2005 indicates that Ms. Gollan and Chief Atcheynum discussed the appropriateness of his brother sitting as a member of the Tribunal. The entry indicates that Ms. Gollan appropriately cautioned about the need to maintain impartiality.
Issues
1. Are either of Ms. Gollan or Mr. Paskemin disqualified from sitting as members of the Tribunal on the basis of irregularities in their respective appointments?
2. Is Ms. Gollan disqualified from sitting as a member of the Tribunal on the basis of bias?
3. What is the appropriate remedy, if any?
4. What order for costs should be made?
Analysis
[24] In this application for prerogative relief, Sweetgrass challenges the right of two (2) of the members of the Tribunal to continue to act in the review of the pending election appeal. The parties agreed that this Court has the jurisdiction to decide the matter and it is clear from the authorities that an appeal tribunal of the sort established here is a federal board within the meaning of section 2 of the Federal Courts Act, R.S.C. 1985, c. F-7: see Gabriel v. Canatonquin, [1978] 1 F.C. 124, affd. [1980] 2 F.C. 792 (C.A.) and Sparvier v. Cowessess Indian Band, [1993] 3 F.C. 142; [1993] F.C.J. No. 446.
[25] The Sparvier decision, above, offers considerable guidance for dealing with the kinds of issues raised in the case at bar. Justice Marshall Rothstein dealt with a challenge to an election tribunal established by the custom of an Indian band. As in this case, the challenge was made on the basis of alleged procedural irregularities and bias. There, however, the tribunal had dealt with the election appeal before its authority to do so was questioned. Notwithstanding that difference, I do not believe that the Sparvier decision is distinguishable from this one. Justice Rothstein's decision clearly defines the scope of the duty of fairness that must be applied by an election tribunal of this type. He held at paragraphs 47, 48, 51 and 52 as follows:
47 While I accept the importance of an autonomous process for electing band governments, in my opinion, minimum standards of natural justice or procedural fairness must be met. I fully recognize that the political movement of Aboriginal People taking more control over their lives should not be quickly interfered with by the courts. However, members of bands are individuals who, in my opinion, are entitled to due process and procedural fairness in procedures of tribunals that affect them. To the extent that this Court has jurisdiction, the principles of natural justice and procedural fairness are to be applied.
48 In deciding what "principles" should apply to the matter at bar, I have had regard to the Supreme Court of Canada decision in Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, where at page 195 of the decision, Gonthier J., for the majority, states:
The content of the principles of natural justice is flexible and depends upon the circumstances in which the question arises. However, the most basic requirements are that of notice, opportunity to make representations, and an unbiased tribunal.
In the case at bar, there is an Appeal Tribunal that is empowered to make decisions affecting elections and the rights of candidates in those elections. Its powers entitle it to uphold an election or order a new election. It has a duty to consider appeals alleging election practices which contravene the Act or illegal, corrupt or criminal practices on the part of candidates. (sic)
...
¶ 51 I am satisfied that the Appeal Tribunal, in this case, had an obligation to conduct its proceedings in accordance with rules of procedural fairness. In Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643, Le Dain J. stated at page 661:
The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have.
There is no question that the candidates in a band election are affected by a decision of an appeal tribunal. Whether the Appeal Tribunal is considered to be acting judically, quasi-judically or administratively, a fair hearing is essential. (sic)
52 Having come to this conclusion, I am of the opinion that the basic requirements set forth by Gonthier J. in Hofer, (supra), are applicable to the Appeal Tribunal of the Cowessess Indian Band No. 73. These [page163] are the requirements of an unbiased tribunal, notice and the opportunity to make representations.
The above analysis accords fully with my own views and I unreservedly apply it to the facts of this case.
[26] It is on the basis of an allegation of bias that the newly elected Chief and Band Council for Sweetgrass now seek to remove Ms. Gollan from the Tribunal to be replaced by a representative they have chosen, namely Mr. Pelton. They also seek to replace Mr. Paskemin with Ms. Weenie on the basis that the earlier Council decision to remove her was irregular. Ms. Gollan and Mr. Paskemin have refused to step down as members of the Tribunal, and they deny that they are disqualified for bias or for reasons of irregularity in their initial appointments. They contend that they were duly authorized to act in this capacity in strict conformity with the Act. They also assert that this proceeding is an attempt by the newly elected Chief and Council to inappropriately usurp the governance authority of the previous Council. The underlying concern of the Defendants is, of course, that such a process could be motivated by a desire to exert some indirect influence over the pending election appeal.
[27] Sweetgrass has raised a number of technical challenges to the appointment of Ms. Gollan and Mr. Paskemin by the previous Band Council. Those challenges involve an alleged failure to fully or correctly document the appointment decisions and a failure to meet at least one of the timing requirements set out in the Act. The latter concern involves the obvious failure by the Band Council to appoint Ms. Gollan as Tribunal Chair not less than ninety (90) days in advance of the election, as stipulated in the Act. Here the appointment decision pertaining to Ms. Gollan was made eighty-eight (88) days before the scheduled election at the Council's election declaration meeting held on August 18, 2005. Mr. Paskemin was appointed even later to replace Ms. Weenie who in turn had replaced Fred Paskemin who had resigned.
[28] Sweetgrass' argument on this point has an obvious double edge to it because, if it is correct, it effectively undermines not only the Tribunal's appointments, but also the entire election.
[29] It is clear to me that this and other time requirements stipulated by the Act are directory and not mandatory in nature. It could not have been intended by the Band that appointment or election processes would be automatically nullified by failure to strictly observe such provisions, particularly in Ms. Gollan's case where the deviation was only two (2) days. This argument is also negated by the obvious need to periodically replace Tribunal members or electoral officers who withdraw (eg. Fred Paskemin). Band Council has to have the authority to name replacements and not be hamstrung with timing requirements that cannot be met or which are inconsequential to the completion of a fair election.
[30] In Sparvier, above, Justice Rothstein was faced with this same issue. There, too, the constitution of a Band Appeal Tribunal was challenged on the basis of a failure to observe a timing requirement for the selection of members. In rejecting the same argument that has been made here, Justice Rothstein held:
27 In my view, an important reason for electing the Appeal Tribunal before the nomination meeting is that it will be in place throughout the election process to deal with the matters over which it has jurisdiction. Another reason for it being constituted before the nomination meeting may be that its members will, at an early stage, avoid becoming involved in a partisan way in the election. Neither reason, however, suggests that the timing of the election of the Appeal Tribunal is of such overriding importance that non-compliance with the timing requirement of paragraph 6(4)(a) should result in the actions of an appeal tribunal elected after a nomination meeting being of no legal effect.
28 In my opinion, if the Tribunal is not elected until some portion of the election process has taken place, it may still deal with appeals once it is constituted. If any member finds that he or she has become aligned with a candidate in such a manner as to raise a reasonable apprehension of bias, he or she should not accept election to the Appeal Tribunal.
29 Invalidating the actions of an appeal tribunal solely because it was elected after the nomination date could well work a serious inconvenience or injustice to the members of the Band who have no control over those entrusted with ensuring compliance with the Act. I am satisfied that the provision requiring that the Appeal Tribunal be elected before the nomination meeting is, in the context of the Act, directory and not mandatory, and that non-compliance does not result in the Appeal Tribunal not being properly constituted. Nor does non-compliance invalidate the election process or the actions or orders of the Appeal Tribunal.
The above remarks have equal application to the circumstances of this case.
[31] Sweetgrass has challenged the right of Mr. Paskemin to sit as a member of the Tribunal based upon a further technical argument. Sweetgrass does not say that he is disqualified from acting on the ground of bias. Sweetgrass contends that Mr. Paskemin's appointment was irregular and not in conformity with the Act and that the earlier appointment of Ms. Weenie should be restored. Some concern has also now been expressed about Mr. Paskemin's ability to dispassionately sit in judgment of the election in the face of this challenge to his membership on the Tribunal. Sweetgrass argues that there is benefit in having an effective sweep of the Tribunal with replacements who can be seen to be objective and impartial.
[32] The stated rationale for Mr. Paskemin's removal, as reflected in the resolution of the newly-elected Council dated November 18, 2005, is that there was no formal BCR to support his appointment to the Tribunal on November 8, 2005. That contention is refuted by the existence of a properly executed BCR provided to legal counsel for the Band by Ms. Gollan on November 29, 2005 and by the recitals in the Council Resolution of November 18, 2005. The fact that a signed copy of this BCR apparently could not be located in the Band Office is not a basis for concluding that any procedural irregularity occurred, particularly in the face of a documentary record which seems regular on its face.
[33] I would add that, if Band Council had the authority under the Act to appoint Ms. Weenie to the Tribunal in advance of the election, it surely had the authority to replace her provided that it acted in good faith and for valid reasons. In these circumstances two (2) of the candidates standing for election were closely related to Ms. Weenie whereas her replacement, Mr. Paskemin, had no family conflicts. The suggestion made after the election that Ms. Weenie should be re-instated to the Tribunal in the face of an appeal challenging the election of her adopted brother as Chief is startling. If the current Council is truly committed to a fair, open and impartial appeal process, it surely does not achieve that result by attempting to oust Mr. Paskemin in favour of Ms. Weenie. I do not mean to suggest by this that Ms. Weenie would not endeavour to honestly and dutifully conduct herself in this role, but only that the appearance of such a conflict would not engender the confidence of most fair-minded electors. In addition, based on the Record placed before me, there is no indication that Ms. Weenie objected to her removal at the time or wishes now to be reappointed to the Tribunal. In the absence of any stated position from her, the inference that I draw is that she accepted the Council's decision to substitute Mr. Paskemin along with its reasons for doing so.
[34] The attempt by the current Council to unseat Mr. Paskemin on technical grounds and to replace him with a person with such obvious family ties to the current Chief detracts from its argument that it is truly committed to a transparent and impartial appeal process.
[35] It is significant, as well, that no one objected to the processes that were put in place before the election. That failure constitutes acquiescence to any irregularities that may have occurred: see Bone v. SiouxValleyIndian Band No. 290, [1996] F.C.J. No. 150 at paragraph 84 et seq.
[36] Finally, I also do not accept that this challenge to Mr. Paskemin's right to continue as a member of the Tribunal is a basis for concern that he could not fairly carry out his responsibilities. Such an argument would disqualify any member of a tribunal simply because his right to sit was legally challenged. There can be no such basis for removing a member of an adjudicative body absent evidence of disqualifying bias. Here there was no evidence offered that Mr. Paskemin was biased, and there is no basis whatsoever for removing him from the Tribunal.
[37] In the result, I do not accept the argument by Sweetgrass that Mr. Paskemin or Ms. Gollan should be removed on the basis of alleged appointment irregularities.
[38] The situation of Ms. Gollan as Tribunal Chair is more complicated and difficult. While the contention by Sweetgrass that Ms. Gollan was in a position of actual bias was never abandoned, it was also not an argument that was advanced with much vigour. I can find nothing in the evidence to support an allegation of actual bias and, indeed, she appears to have acted at all times out of a sense of responsibility to maintain the integrity of the election appeal process. There are, however, a number of aspects of Ms. Gollan's prior involvement in the legal affairs of Sweetgrass and Chief Atcheynum which indicate quite clearly that she cannot continue to sit on the Tribunal.
[39] I think it helpful to reflect on the principles by which the concept of apprehended bias is determined. On this the Sparvier decision, above, again offers guidance at paragraphs 53 to 57:
53 The question of bias strikes at the heart of the validity of the Appeal Tribunal's actions. The underlying doctrine with respect to bias is based on the oft-quoted maxim of Lord Chief Justice Hewart in Rex v. Sussex Justices.Ex parte McCarthy, [1924] 1 K.B. 256, at page 259:
... justice should not only be done, but should manifestly and undoubtedly be seen to be done.
54 The test for a reasonable apprehension of bias was stated by de Granpre J. (sic) in the Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369">[1978] 1 S.C.R. 369, at page 394:
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. ..."
55 The application of the test for reasonable apprehension of bias will depend on the nature of the tribunal in question. In Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, Cory J. states at pages 638-639:
It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the board should be such that there could be no reasonable apprehension of bias with regard to their decision. At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors. With those boards, the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a pre-judgement of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature.
[page164]
56 In my view, the function of the Appeal Tribunal is adjudicative. Its duty is to decide appeals based on contraventions of the Cowessess Indian Reserve Elections Act or illegal, corrupt or criminal practices on the part of candidates. Even though Appeal Tribunal members may not be legally trained, it appears that they are to decide, based on facts and their application of the Act or other Band customs, traditions or perhaps other laws, whether or not to uphold an election or order a new election. Members are not popularly elected. Although the Act uses the term "elected", members are selected by the Band Council.
57 This leads me to conclude that in the absence of compelling reasons, a more rigorous rather than a less strict application of the reasonable apprehension of bias test would be desirable in the case of the Appeal Tribunal. I will comment further on the question of compelling reasons to the contrary subsequently. I should add, however, that on the facts of this case, a less strict application of the test leads me to the same conclusion I would have reached had I applied the test in a more rigorous fashion.
I accept Justice Rothstein's conclusions about the need to rigorously apply the principles of apprehended bias to the work of a Band Election Tribunal. In all adjudicative processes by which democratic elections may be scrutinized or challenged, the need to ensure impartiality is critical to maintenance of electoral confidence.
[40] It was argued on Ms. Gollan's behalf that the kind of past professional relationship she had maintained with Sweetgrass is almost unavoidable and that the concept of bias must, therefore, be applied with a degree of practicality and flexibility. It was also pointed out that the Act does not expressly prohibit legal counsel to the Band from acting as Tribunal Clair and, therefore, by implication, such a relationship must be taken as acceptable.
[41] The fact that the Act does not expressly deal with every potential situation of disqualifying conflict for appointees to the Tribunal does not implicitly authorize the appointment of any person who is not expressly prohibited from so acting. Given the size of the Sweetgrass Band and the close familial, business and friendship bonds that exist in such an environment, some degree of common sense and flexibility is undoubtedly required in making choices of this kind: see Sparvier, above, at paragraph 64 et seq. On the other hand, there will be persons with perceived or actual vested interests in the outcome of a Band election who cannot sit on the Tribunal, even though the Act does not precisely describe the particular circumstances of conflict or bias that have allegedly arisen.
[42] The need to maintain a perception of fairness in the face of prior professional or family relationships or rivalries is described by Professor Mullan in his text Administrative Law (2001) at page 330:
Whatever the uncertainties as to the meaning and application of the test for bias, there are many situations where disqualification is almost inevitably going to occur. Adjudicating in cases involving close friends, personal enemies, business associates, and rivals, not to mention family members, provide clear, though nowadays infrequent examples. Indeed, the rules of many tribunals contain codes identifying relationships of this kind that are either disqualifying or at the very least have to be declared.
[43] What can be seen from a review of Ms. Gollan's professional work, as described in her fee accounts, is that she had a significant financial interest in maintaining her retainer with Sweetgrass, and that she had a close working relationship with Chief Atcheynum, including the provision of legal advice and services on his personal behalf. I do not mean to suggest that it was inappropriate for Sweetgrass to have paid for Ms. Gollan's services in representing Chief Atcheynum. In all likelihood, his need for legal representation was a consequence of his role as Chief. However, the fact remains that Ms. Gollan acted as legal counsel for Chief Atcheynum. At one point, she also provided advice to him about a possible libel action against Chief Standinghorn and the Battlefords Tribal Council. It is noteworthy that Battlefords Tribal Council was one of the Defendants in the Sweetgrass/Atcheynum lawsuit described above. Ms. Gollan's affidavit makes the following connection between this earlier consultation with Chief Atcheynum and the subsequent litigation:
In January, 2005, the Chief and Councilor [sic] Paskemin inquired about the First Nation bringing a liable [sic] action against Wayne Standinghorn, Battlefords Tribal Council, and the Radio Station, for comments that were aired regarding a potential lawsuit against Battlefords Tribal Council. I advised that this was a matter that they should discuss further with the lawyer who would be representing them in that action.
[emphasis added]
[44] Although Ms. Gollan's affidavit purports to minimize the significance of this consultation by saying that she referred the matter to "the lawyer who would be representing them in that action", she nevertheless did consult with Chief Atcheynum about a possible legal action against Chief Standinghorn. Ultimately, she became one of the lawyers acting on behalf of Sweetgrass and Chief Atcheynum in the proceeding brought against Battlefords Tribal Council. Although Chief Standinghorn is not a party to that proceeding, it is obvious from Ms. Gollan's affidavit that the issues arising in that litigation had a connection to Chief Standinghorn and were part and parcel of a rivalry between Chief Atcheynum and Chief Standinghorn.
[45] The existence of a solicitor-client relationship with one of the parties to a dispute has been found to constitute bias, and was sufficient to disqualify the lawyer from acting as an arbitrator, even though the existing relationship was unrelated to the matter in dispute: see [1966] S.C.R. 367">Ghirardosi v. British Columbia (Minister of Highways), [1966] S.C.R. 367. In this case, the solicitor-client relationship between Ms. Gollan and Chief Atcheynum cannot be described as wholly unrelated to the mandate of the Tribunal, and the perception of bias is thereby magnified.
[46] Of additional concern is the evidence of Ms. Gollan's potential financial interest which hinged on the outcome of the election. She enjoyed a close working relationship with the previous Chief and Council and benefited from her retainer by Sweetgrass. That professional relationship was ended by the incoming Chief and Council following the November 13, 2005 election.
[47] There is a clear and obvious danger raised by the appointment of legal counsel to the Band as the Tribunal Chair in circumstances such as these. The inherent danger is that counsel may have a perceived (if not actual) vested financial interest in maintaining the political status quo.
[48] In this case, it was not only the existence of a past professional relationship that is problematic. It is also the loss of that relationship by virtue of the election that creates an additional problem of perception. A different election outcome could bring about the restoration of Ms. Gollan's retainer as counsel to the Band and benefit her financially.
[49] The Courts have been rigorous in applying the test for bias to situations involving the existence of a meaningful pecuniary interest on the part of a delegate sitting in judgment of a dispute. This point is made by Jones and de Villars in Principles of Administrative Law (4th edition) in the following passage at page 373:
The courts have consistently held that the existence of a direct financial interest in the outcome of the matter in dispute almost always disqualifies a statutory delegate from acting. In other words, a pecuniary interest gives rise to a "reasonable apprehension of bias", no matter how open-minded in fact the delegate might be.
[50] In these circumstances, the perception or apprehension of bias is overwhelming. No reasonably informed observer of this situation would be untroubled by the appearance of Ms. Gollan's potential financial interest in returning to office the previous Chief and Council who had retained her, and in removing the representatives who had terminated that retainer.
[51] I do not think that the simple involvement of a lawyer in Ms. Gollan's firm in the swearing of affidavits on behalf of the party appealing the election would, standing alone, justify Ms. Gollan's removal from the Tribunal. However, there is an obvious need to scrupulously protect the impartiality of the Tribunal, and anything that detracts from the appearance of objectivity is undesirable. When considered with the other concerns of perception noted above, this, too, becomes an added basis for Ms. Gollan's removal.
[52] The conclusion I have reached is that Ms. Gollan is disqualified from sitting as a member of the Tribunal because of a reasonable apprehension of bias and she must now be replaced.
Remedy
[53] There is much to be said for the Court adopting the least intrusive path into the affairs and decisions of Sweetgrass in fashioning a remedy for the electoral impasse which has arisen. Like most other democratic institutions, the electors and elected representatives of Sweetgrass are fully capable of conducting their business without outside involvement and, except in a limited way, this case is no exception.
[54] In the face of a removal of Ms. Gollan, I was invited to endorse Mr. Pelton as her replacement as Tribunal Chair. Even if I had that authority - a doubtful proposition at best - I would not be disposed to exercise it.
[55] The appointment of a new Chair to replace Ms. Gollan is the responsibility of the current Band Council. While Mr. Pelton is undoubtedly well-qualified, fair-minded and impartial, it may be that the Chief and Council will, as their legal counsel argued before me, decide to take a completely fresh approach to the replacement decision. That is properly a political choice which will presumably be made in the best interests of maintaining the integrity of the electoral process. If the decision is made in a way that would run counter to the principles which I have addressed in the situation of Ms. Gollan, any aggrieved party would have the right to seek judicial recourse once again.
[56] In the result, I intend only to order the removal of Ms. Gollan as Tribunal Chair and I will leave the selection of her replacement to the Band's current elected representatives. I would direct, however, that the selection of a replacement for Ms. Gollan shall be made within thirty (30) days of the date of this judgment and, thereafter, the Tribunal shall proceed in accordance with all of the other requirements of the Act.
Costs
[57] Both parties invited me to award costs against the opposing parties. In the case of the Defendants, they are seeking a complete indemnity for their legal costs.
[58] There is certainly no reason to deny Ms. Favel and Mr. Paskemin a complete indemnity for their legal costs. They agreed to assume an important role in the electoral affairs of the Band and, for doing so, were named as personal Defendants in an unmeritorious action brought by the Band.
[59] I think it unlikely that any person would willingly assume such a role if they faced a risk of bearing legal costs in an action brought by the very party on whose behalf they were acting whether that action proved to be successful or otherwise. In many situations of this sort, one could expect to see a by-law provision requiring that individuals acting in this capacity be indemnified for any legal costs they incur in the good faith exercise of their responsibilities. Here the Act makes no such provision, but there is authority in election cases for an award of solicitor-client costs and I will apply that authority to the case at bar: see Janigan v. Harris (1989), 62 D.L.R. 4th 293 (Ont. High Ct. J.) and Silva v. O'Donohue (1995) 130 D.L.R. 4th 334 (Ont. C.A.).
[60] Notwithstanding Ms. Gollan's unsuccessful defence to the Band's claim against her, I think that the same principles favouring complete indemnity should be applied in her favour. She took on the role of Tribunal Chair at the request of the Band Council and adopted a principled, albeit unmeritorious, position in defence to the allegations brought against her. The Council that appointed her was well aware of the particulars of her professional relationship with it officers and with Sweetgrass. Sweetgrass must bear responsibility for the decision made on its behalf. Inasmuch as Ms. Gollan and the other Defendants were represented by one counsel throughout, it is doubtful that any additional legal costs will be payable by the Band beyond what would be payable in any event to the other two Defendants. The award of costs in favour of Ms. Gollan is subject to one caveat. In her case alone, it will be subject to her obligation to repay to the Band any monies received by her as a retainer to act in her capacity as Tribunal Chair. The Record indicates that she received one thousand dollars ($1,000.00) as a retainer to act in that capacity, and to my mind it would be inappropriate for her to retain those funds in addition to the indemnity which she will receive for her legal costs.
[61] The solicitor-client costs of the three Defendants will be taxed in a single bill of costs to ensure that there is no duplication for amounts recovered.
JUDGMENT
THIS COURT ADJUDGES AND DECLARES that the Defendant, Lori Gollan, is disqualified from sitting as a member of the Tribunal. All files and relevant documentary material in her possession shall be returned to Sweetgrass forthwith.
THIS COURT FURTHER ADJUDGES that a replacement Chair of the Tribunal shall be selected by Band Council for the Plaintiff within thirty (30) days of the date of this judgment.
THIS COURT FURTHER ADJUDGES that the Plaintiff's claim against the Defendants, Virginia Favel and Myron Paskemin, is dismissed.
THIS COURT FURTHER ADJUDGES that the Defendants shall have their costs to be taxed on a solicitor-client scale against the Plaintiff in a single bill of costs subject only to a repayment by the Defendant, Lori Gollan, of the amount of any retainer paid to her by the Plaintiff for acting in the capacity of Tribunal Chair.
"R. L. Barnes"
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