Date: 20061107
Docket: 06-T-38
Citation: 2006
FC 1336
Edmonton, Alberta,
November 7, 2006
PRESENT: The Honourable Barry Strayer
BETWEEN:
RICHARD EDWARD HORSEMAN
Applicant
and
DION
SHERMAN HORSEMAN, WALTER A.J.
HORSEMAN,
DEAN RALPH HORSEMAN, MICHASEL LORNE HORSEMAN
and EUGENE L. HORSEMAN
Respondents
REASONS FOR ORDER AND ORDER
[1] This is a motion for an extension of time to apply for judicial
review.
[2] The Horse Lake
First Nation in Albert held elections for the Chief and Band Councillors under
its own Regulations, on June 29, 2005. The applicant was an unsuccessful
candidate for chief. He appealed the elections to an Appeal Board established
under the Regulations. The Appeal Board after hearing witnesses and
submissions dismissed the appeal in a decision of February 20, 2006. The
results of the appeal were made known to the applicant on March 3, 2006 and he
received a copy of the decision on March 7, 2006. He filed this motion for an
extension of time on May 9, 2006, some 33-37 days (depending on when one
considers the decision was “communicated to him”) after the time limit for an
application for judicial review to be filed as prescribed by subsection
18.1(2)of the Federal Courts Act.
[3] I have concluded that the extension of time should not be granted.
The usual criteria for granting such extensions are well known although it is a
discretionary power for which other grounds for its exercise may appear in
appropriate cases. See, e.g.: Grewal v. Canada [1985] 2 F.C. 263 at 277-78 (C.A.); Jakutavicius v. Canada (Attorney General) [2004] F.C.J. No. 1488 at paras. 15, 16.
[4] The factor which I consider determinative in this case is what I
find to be the lack of an arguable case. A court undertaking a review of the
Appeal Board decision would, I believe, be asked to review findings of fact as
to the existence and scope of electoral corruption. The Board put considerable
stress on its findings of credibility largely based on the demeanour of the
witnesses whom it had before it. The Board consisted of three experienced
lawyers, the Chairperson being a former Chief Justice of a provincial superior
court. The standard of review of the Board’s findings of fact on judicial
review would, in my view, be patent unreasonableness, and I do not believe the
applicant has demonstrated even tentatively a likelihood of such a review
succeeding in his favour. Apart from these important findings of fact a
judicial review would have to consider the findings of the Appeal Board in
applying the election Regulations, that is, the law, to the facts. There the
standard of review would I think be reasonableness and again I do not see in
the applicant’s material any likely basis for a reviewing court to find a lack
of reasonableness in the Board’s conclusions.
[5] As for other factors, I find the evidence ambiguous as to whether
the applicant had truly formed an intention within the 30-day time limit to
bring an application for judicial review. I also believe that to allow this
application to proceed will be prejudicial to the harmony of the First Nation
for no particular reason.
[6] I will therefore dismiss the motion, with costs.
ORDER
The
motion for an extension of time to apply for judicial review is dismissed with
costs.
“B.L.
Strayer”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: 06-T-38
STYLE OF CAUSE: RICHARD
EDWARD HORSEMAN v.
DION SHERMAN HORSEMAN and others
PLACE OF
HEARING: EDMONTON, ALBERTA
DATE OF
HEARING: NOVEMBER
6, 2006
REASONS FOR ORDER: STRAYER, DJ.
DATED: NOVEMBER
7, 2006
APPEARANCES:
|
Mr. Michael E.
Wheaton
|
FOR THE APPLICANT
|
|
Mr. H. Derek
Lloyd, Q.C.
|
FOR THE RESPONDENTS
|
SOLICITORS
OF RECORD:
|
Dobko, Logan,
Innes and Hougestol
Grande Prairie, Alberta
|
FOR THE APPLICANT
|
|
Fraser Milner Casgrain
LLP
Calgary, Alberta
|
FOR THE RESPONDENTS
|
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