Paul v. Alexander First Nations, 2003 FCT 118

Date: 20030204

Docket: T-1712-02

Neutral citation: 2003 FCT 118

Ottawa, Ontario, Tuesday, the 4^th day of February 2003

PRESENT:        The Honourable Madam Justice Dawson

BETWEEN:

                                                                        RENE PAUL

                                                                                                                                                       Applicant

                                                                              - and -

COUNCIL OF THE ALEXANDER FIRST NATIONS, CHIEF VICTORIA ARCAND, COUNCILLORS ARMAND ARCAND, HERBERT R. ARCAND, and MARTIN ARCAND and THE ATTORNEY GENERAL OF CANADA

                                                                                                                                               Respondents

                                                            REASONS FOR ORDER

DAWSON J.

[1]                 These are my reasons for dismissing the motion brought by Mr. Paul seeking an interlocutory order restraining, pending a new election, the respondent chief and three council members from making any operational or financial decision in their capacities as chief and councillors of the Alexander First Nations.

[2]                 Mr. Paul's motion, heard at the Court's General Sitting in Edmonton, also sought a declaration that the results of the September 12, 2002 election for chief and councillors are null and void, an order in the nature of quo warranto, and an order that a new election be called for the positions of chief and three councillors. For the reasons that follow, the motion as it relates to that relief is also dismissed.

THE EVIDENCE BEFORE THE COURT

[3]                 Mr. Paul swore two affidavits in support of his motion. In the first affidavit he swore to his belief that Victoria Arcand, Armand Arcand, Herbert R. Arcand, and Martin Arcand ("individual respondents") caused to be paid some $300,000 to eligible voters on the Alexander First Nations Reserve for the purpose of influencing and buying votes. He attached as exhibits to his affidavit letters from six electors in which they stated that they had received cheques from an individual respondent. In no case did an elector state in their letter the amount of any cheque received. Also attached to the affidavit was what was said to be a petition, signed by at least 51 percent of the electors, in which the electors stated:

1.              Due to major irregularities being cited regarding the September 12, 2002 Alexander Tribal Government Customary Election Regulations, we do not approve or recognize of the Band Members who were presumably elected as the new Chief and Council.

2.              That the Chief and Council who are presumed to be elected and currently holding office "cease and desist" from making any decision of an operational or financial nature pending a review of the September 12^th, 2002 Alexander Tribal Government Customary Elections by the Appeal Board and/or the Federal Court.

3.              The Appeal Board identified in the Alexander Tribal Government Customary Election Regulations are to waive the provisions of section 30 and take immediate steps to review those appeals submitted by various members.

[4]                 The petition was undated, but was signed on or before October 3, 2002 because it was exhibited to Mr. Paul's affidavit sworn that day. Mr. Paul swore that as a result of this petition it was his belief that the offices of the individual respondents were vacated.

[5]                 In Mr. Paul's second affidavit he swore to his belief that at a meeting of the chief and council on August 12, 2002, in addition to setting the date for the impugned election (September 12, 2002), a decision was made that there would be a suspension of the payment of salaries, loans and band member assistance from that date until the date of the election. Mr. Paul believed that one purpose for this was to prevent electoral corruption, including bribery and "vote buying". What was described by Mr. Paul to be a written notice of this suspension to the Alexander First Nations was attached as an exhibit to the affidavit.

[6]                 Also attached to Mr. Paul's second affidavit were three letters from another elector stating that he had received financial assistance on September 4, 2002 by way of a cheque for approximately $200, approved and delivered to his residence by Martin Arcand, approximately one week before the election. The elector wrote in the second letter that he had asked Armand Arcand for financial assistance and Armand Arcand had replied "this will cost you a vote". In the third letter, the elector wrote that on September 10, 2002 he had received a cheque in the amount of approximately $250 approved by Herbert Arcand. Mr. Paul swore that he believed those monies were provided to the elector for the purpose of influencing the elector's vote. One similar letter was provided by a second elector, four letters were provided by a third elector, and four more letters were attached signed by four other electors. All of the exhibited letters were form letters that set out the name of the financial recipient, the nature of the payment, the amount of the payment, and the date of receipt of payment. In each case Mr. Paul, but not the recipient, swore that he believed the monies were provided for the purpose of influencing the recipient's vote. The payments listed in all of the exhibited letters total approximately $5,230.

[7]                 Mr. Paul concluded his second affidavit by swearing to his belief that some of the electors who had signed the petition attached to his first affidavit were being coerced, either directly or indirectly, into removing their names from that petition. Form letters were exhibited to the affidavit from three individuals to that effect. In one letter, an elector complained that he was having difficulty getting paid by the Band administration for a contract he had performed, and he attributed this difficulty to having signed the petition. In the remaining two letters, the Health Services Director of the Band was said to have told one elector that she should be fired for taking a petition around the community and to have told another elector that if she signed the petition she would be "let go" from her job.

[8]                 Mr. Paul did not provide any basis for his sworn belief that the individual respondents caused to be paid some $300,000 to eligible voters.

[9]                 Three additional affidavits were received at the hearing in support of the motion. In one, a former council member swore that at the August 12, 2002 meeting of the chief and council it was resolved that payment of all salary advances, loans and band member assistance would be suspended until September 12, 2002. She also swore that on September 9, 2002 she had herself delivered a band assistance cheque with a value of approximately $200 to $300 to a band member.

[10]            In another affidavit, a member of the Alexander First Nations swore that she asked Chief Arcand on an unspecified date for assistance to help pay her gas and power bills. The member swore that the Chief said "it will cost you a vote".

[11]            In the third affidavit, one of the six individuals who provided a letter attached to Mr. Paul's first affidavit confirmed the truth of the contents of that letter.

[12]            Each individual respondent swore an affidavit in opposition to the motion.

[13]            Chief Arcand swore that the allegations of vote buying against her were incorrect. She denied delivering cheques in those cases where letters attached to the Paul affidavits stated that she had done so. She also denied, on the one occasion alleged against her, stating that her approval of the salary advance was conditional on how the person (himself a candidate in the election) voted. With respect to one letter attached to Mr. Paul's affidavit which stated that financial assistance in the amount of $1,500 was provided to the elector between August 12 and September 12, 2002, Chief Arcand provided copies of the written request for assistance and the resulting cheque. Both documents were dated September 18, 2002, post-dating the election.

[14]            With respect to the alleged moratorium on payments, Chief Arcand swore that while the notice attached to Mr. Paul's affidavit was prepared by her, it was prepared as a draft for discussion purposes at the council meeting. According to Chief Arcand, council decided after discussion that it would cause too much hardship to impose this moratorium, and instead council resolved that the Band administrator would deal with all assistance requests.

[15]            With respect to the electors' petition, Chief Arcand exhibited to her affidavit letters from nine electors, said to be unsolicited, requesting that their signatures be removed from the petition attached to Mr. Paul's affidavit. Some of those letters stated that the elector had misunderstood the petition or had been misled or misinformed about it. A second petition was exhibited to Chief Arcand's affidavit, signed by about 59 electors (including Victoria Armand, Al Arcand, Herb Arcand, Armand Arcand and Martin Arcand), wherein they stated that they did not support efforts to overturn the September 12, 2002 election. This petition was signed by a number of electors who had also signed the first petition.

[16]            Finally, Chief Arcand swore that on October 16, 2002, the Alexander First Nations Election Appeals Board ("Appeal Board") constituted under the Alexander Tribal Government Customary Election Regulations ("Regulations") had heard the election appeal of Rene Paul, and others. On October 22, 2002, the Appeal Board had dismissed Mr. Paul's appeal. A copy of that decision was exhibited to the affidavit.

[17]            Martin Arcand in his affidavit denied all assertions of improper actions, and swore that the chief and council did not decide to suspend all payments. Instead, it was decided that the administrator would process assistance payments during the election campaign.

[18]            To similar effect were the affidavits of Herbert Arcand and Armand Arcand.

[19]            A council member whose position on the council was not assailed in this proceeding swore an affidavit that exhibited, among other things, the Regulations, the electoral officer's report of election results, Mr. Paul's appeal from the election results, other appeals filed with respect to the election, the decision of the Appeal Board with respect to Mr. Paul's appeal and the transcript of the proceedings before the Appeal Board.

[20]            The individual respondents were each cross-examined on their affidavits, as were the three deponents whose affidavits were filed at the hearing. On cross-examination the former council member admitted that no motion was made and no vote was taken by council to suspend salary advances, loans or Band member assistance. The former councillor admitted that she and other councillors continued to approve and deal with request for assistance, and that she personally received assistance, advances or loans during that period.

[21]            Prior to the hearing of Mr. Paul's motion the application was discontinued against the Attorney General of Canada, and so no evidence or submissions were filed on his behalf.

THE CUSTOMARY ELECTION REGULATIONS

[22]            The parties are in agreement that the election of the chief and councillors was, and is, governed by the Regulations and that the election was conducted pursuant to those Regulations. Provisions of the Regulations which are relevant to this motion are Articles 27 and 28 dealing with election results, Articles 29, 30 and 31 dealing with appeals, and Article 33 dealing with vacancy of office. Those articles are, respectively, as follows:

27.            Within twenty-four (24) hours of the public declaration of the candidates elected for office, the Electoral Officer shall:

(a)            Provide to each candidate and shall post in the Alexander Tribal Government Administration Office, Education Office, Day Care Centre, Tribal Farm and such other places on the Alexander Reserve as he deems necessary, a notice setting out:

(i)             the candidates elected, and

(ii)            the number of votes cast for each candidate, and

(iii)           the number of ballots rejected.

28.            The Electoral Officer shall, after counting the ballots deposit all of the ballots in a sealed envelope and retain possession of the ballots for a period of thirty (30) days or until he is served with a notice of appeal at which time he shall forward the ballots along with the voters list and any other documentation which he considers relevant to the appeal board.

APPEALS

29.            Within fifteen (15) days after the posting of the written statement by the Electoral Officer pursuant to Section 27, any elector who has reasonable grounds to believe:

(a)            that there was corrupt practice in connection with the election, or

(b)            that these Regulations were not complied with

may appeal the election of a candidate or candidates by filing a written notice of appeal with the Electoral Officer which sets out the grounds of the appeal.

30.            The appeal board shall hear the appeal with thirty (30) days of filing of the notice of appeal and shall deliver its decision with[in] five (5) days of the hearing of the appeal. The appeal board shall not be bound by any rules of evidence. The decision of the appeal board shall be final and binding. Any appeal to a Court of Law shall be founded in law and not in fact.

31.            Where the appeal board finds that a candidate or candidates have not been elected to office in accordance with these Regulations, the Electoral Officer shall hold a nomination meeting and election for the vacant office or offices in accordance with these Regulations.

[...]

VACANCY OF OFFICE

33.            The office of Chief or Councillor becomes vacant when:

(a)            the person who holds that office:

(i)             dies, or

(ii)            resigns his office, or

(iii)           is in the opinion of fifty-one percent (51%) of the electors of the Alexander Tribe, who endorse their signature on a petition, unfit to continue in office by reason of his having been convicted of an offence under the Criminal Code of Canada, having been absent from meetings and neglected other duties of office to the extent that the business of the Alexander Tribe is being jeopardised, or for any other reason of an equally serious nature.

(b)            Where the office of Chief or Councillor becomes vacant more than three (3) months before the date when another election would ordinarily be held, a special election may be held in accordance with the Regulations to fill the vacancy.

THE PROCEEDINGS BEFORE THE APPEAL BOARD

[23]            Mr. Paul commenced his appeal to the Appeal Board on September 19, 2002. In his notice of appeal Mr. Paul stated that the basis of his appeal was that he had "reasonable grounds to believe that there was corrupt practice" in connection with the election. By way of particulars Mr. Paul asserted that a significant number of Band member assistance cheques were issued, notwithstanding prior statements by the chief and council that they could not make decisions on operational issues, and that the individual respondents issued financial assistance cheques to eligible voters "with elements of bribery and coercion", in exchange for votes.

[24]            On October 7, 2002, Mr. Paul commenced the present proceeding in this Court. He sought a declaration that the election of the individual respondents was null and void, an order in the nature of quo warranto, a declaration that a new election be held, and interim relief.

[25]            On October 16, 2002, the Appeal Board met to hear all of the appeals brought in respect of the election. A written decision was rendered with respect to each appeal. In respect of Mr. Paul's appeal, the Appeal Board's decision was as follows:

Decision

Approach of Board to Evidence

Section 30 of the Regulations provide that the appeal board is not bound by the rules of evidence. However, it is fundamental to the rules of natural justice and procedural fairness, which are applicable to this Appeals Board under Federal Law that those against whom allegations have been made must have an opportunity to hear them and respond. In terms of substantive fairness, the Appeals Board must:

a.              Exercise its power reasonably

b.              Consider relevant evidence

c.              ignore irrelevant evidence

d.              Not act in malice or for an improper purpose.

[...]

On the issues of corrupt practice, Mr. Paul presented no substantial, direct or compelling evidence to convince the Appeals Board on a balance of probabilities that there were any corrupt practices in relation to the Election on Alexander on September 12^th, 2002. General statements of improprieties without evidence to substantiate such serious claims must be held to a higher evidentiary standard than matters of less serious claims. Mr. Paul did not offer any documents or witnesses to substantiate the claims of corrupt practice and as such the Appeals Board cannot make a decision without the necessary evidence. Mr. Paul presented no evidence to substantiate the Alexander customary law with respect to the issues he raised, including the acceptance of heresay evidence, the applicability of natural justice with respect to customary law, or the presence or role of lawyers with respect to customary law. Accordingly, this portion of the within Appeal is dismissed.

Accordingly, given the findings of the Appeals Board, the Election of September 12^th, 2002 remain[s] intact. Dated October 21^st, 2002.

THE REQUEST FOR INTERLOCUTORY RELIEF

[26]            In this application, Mr. Paul does not challenge the process before the Appeal Board. Nor does he seek in this application judicial review of that decision. Rather, Mr. Paul asks the Court to consider allegations of election corruption previously considered by the Appeal Board and asks the Court to give effect to the electors' petition by declaring the offices of chief and three councillors to be vacant. It is in this context that the claim for interim relief is sought.

[27]            The principles which govern motions for interlocutory injunctions and stays are well-settled. An applicant must demonstrate a serious question to be tried, that the applicant will suffer irreparable harm if the relief is not granted, and that the balance of convenience favours granting interlocutory relief.

(i) Should interlocutory injunctive relief be granted on the basis of the alleged corrupt election practices?

[28]            At the outset, I observe that the evidence in support of the allegation of corrupt election practices is, in my view, weak. However, I am mindful that the threshold for establishing a serious question to be tried is low, and generally the Court is not to enter into a prolonged examination of the merits. Setting aside, therefore, what I perceive to be weaknesses in the evidence, I am satisfied that a more fundamental flaw exists in Mr. Paul's request for injunctive relief. That flaw results from the fact that Mr. Paul's allegations were advanced before the Appeal Board, considered, found lacking, and dismissed.

[29]            The Alexander First Nations expressly entrusted to the Appeal Board, constituted under the Regulations, responsibility to conduct any requested review of election results. The Regulations establish an expeditious process for reviewing allegations concerning elections, specifically including allegations of corrupt practice in connection with an election. That the result of the Appeal Board's review is intended to be afforded great weight and respect is reflected by the fact that the Regulations provide that such a decision is to be final and binding, and any recourse to the Court is to be based upon legal issues, not factual disputes.

[30]            The Appeal Board carried out the task entrusted to it by the Alexander First Nations. In that circumstance, where no facts or matters are asserted under oath that cast doubt on the propriety of that proceeding, and where a review of the transcript of the proceedings before the Appeal Board does not disclose vitiating factors on the face of that record, I am satisfied that I should not exercise my discretion to grant interlocutory injunctive relief. I reach that conclusion on the basis that the balance of convenience does not favour the granting of injunctive relief.

[31]            Mr. Paul has failed to meet the onus of showing that the inconvenience and harm likely to be suffered from the refusal to grant the interlocutory injunction is greater than the inconvenience and harm likely to be suffered by the Alexander First Nations if the provisions of the Regulations are ignored and proper deference is not shown to the procedure established under the Regulations.

(ii) Should interlocutory relief be granted on the basis of the petition of electors?

[32]            The remedies of quo warranto and mandamus are sought by Mr. Paul on the basis that Article 33 of the Regulations states that where 51 percent of electors sign a petition to the effect that a chief or councillor is unfit to continue in office, such office becomes vacant. It is said that 51 percent of electors have so concluded, as evidenced by the petition attached to Mr. Paul's affidavit. It is further said that it follows that the Court should grant quo warranto, and an order for certiorari in the nature of mandamus that a new election be called for the positions of chief and three councillors.

[33]            However, the remedies of quo warranto and certiorari are, by their nature, final. Counsel for Mr. Paul conceded during oral argument that on the basis of his review of the authorities he had concluded that these remedies were not likely available on an interim or interlocutory basis. I agree, and do not believe that either remedy can properly be granted in the context of the claim for interim relief.

THE REQUEST FOR FINAL RELIEF

[34]            Faced with this difficulty, Mr. Paul sought in his amended notice of motion declaratory relief and the remedies of quo warranto and certiorari on a final basis. Counsel for all of the respondents joined in requesting that the Court in effect transform the motion into the hearing of the application for judicial review and so finally dispose of this matter. Such submission was made notwithstanding the failure of the parties to comply, or substantially comply, with Rules 306, 307 and 81 of the Federal Court Rules, 1998 which require parties to file affidavits and documentary exhibits. In the present case significant evidence is based upon information and belief. Rule 81 provides that while evidence on a motion for interlocutory relief may be based upon information and belief, evidence to be used on an application for judicial review is to be based upon personal knowledge. Additionally, the parties failed to provide application records as required by Rules 309 and 310, failed to requisition a hearing date for the hearing of the application for judicial review as required by Rule 314, and also failed to confine the oral argument to within two hours, as required for a matter to be heard at a general sitting of the Court.

[35]            No counsel relied upon or referred to authority, either in the rules or in the jurisprudence, which supported their submission that final relief was and should be available in the circumstances before the Court.

[36]            The rules of this Court are designed to ensure that where a matter is to be finally determined a proper evidentiary record will be before the Court, containing only admissible evidence, and that the Court will have the benefit of memoranda of fact and law that are more comprehensive than the written submissions required on a motion.

[37]            The requirements that final hearings be requisitioned and then scheduled by the office of the judicial administrator, and the requirement that matters heard at a general sitting not exceed two hours, reflect the need of the Court to control its own schedule. This allows the Court to ensure to the extent possible that urgent matters are disposed of on a timely basis, litigants are not permitted to "queue jump", and litigants with matters properly before a general sitting are not exposed to inordinate delay.

[38]            For these reasons, litigants ought not to add, or agree among themselves to add, claims for final relief to what would otherwise be a proper motion for interim injunctive relief.

[39]            In special circumstances the Court might, pursuant to Rule 55, on motion and proper evidence, dispense with compliance with the rules cited above. However, I decline to do so in this case because no special circumstances have been established on the evidence which require this matter to be finally determined at this time. Further, where any such request is to be made to the Court it would be, at the least, advisable to ensure that the evidence before the Court complies with Rule 81 (that is, it is based on personal knowledge) and that written memoranda of fact of law are before the Court. Alternatively, a party may request on motion directions pursuant to Rule 54 concerning the procedure to be followed in a particular case.

[40]            Having decided that the circumstances and evidence do not warrant a final determination at this time, in an effort to avoid further expense to the parties, I do observe that in my view any effort to seek quo warranto or certiorari on the basis of the existing electors' petition will be unsuccessful for the following two reasons.

[41]            First, as a matter of evidence, the wording of the petition attached to Mr. Paul's affidavit is insufficient to invoke Article 33 of the Regulations. Nowhere in the petition is it stated that in the opinion of the signatories the individual respondents are unfit to continue in office by reason of any specific conduct. Nor does the petition refer to Article 33 of the Regulations, or ask that any position be declared vacant. Rather, the signatories request the immediate review by the Appeal Board of the appeals launched as a result of the election. This was done after the petition was signed.

[42]            Second, in my view recourse cannot be had to Article 33 of the Regulations to attack collaterally the results of an appeal hearing conducted by an Appeal Board pursuant to Articles 29 to 31 of the Regulations. Article 29 expressly contemplates that concerns about corrupt election practice are to be dealt with by way of an appeal to the Appeal Board. The Regulations cannot reasonably be construed to mean that when this is done, and the Appeal Board has decided the issue, that a contrary result may be sought by recourse to Article 33.

CONCLUSION

[43]            For these reasons, the motion brought by Mr. Paul will be dismissed.

[44]            At the hearing counsel requested the opportunity to make written submissions as to costs after the release of these reasons. Accordingly counsel for the respondents may serve and file written submissions as to costs within 14 days of receipt of these reasons. Thereafter, counsel for Mr. Paul may serve and file responsive submissions within 14 days. The respondents may then serve and file reply submissions within seven days of receipt of the submissions served on Mr. Paul's behalf.

[45]            Following consideration of those submissions, an order will issue dismissing the motion and disposing of the issue of the costs of the motion.

                 "Eleanor R. Dawson"         

Judge

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-1712-02

STYLE OF CAUSE:          Rene Paul v. Council of the Alexander First Nations et al.

PLACE OF HEARING:        Edmonton, Alberta

DATE OF HEARING:         November 21, 2002

REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE DAWSON

DATED:                    February 4, 2003

APPEARANCES:

Robert Hladun              FOR APPLICANT

Trina Kondro              FOR RESPONDENT / ALEXANDER FIRST NATION

Janice Agrios              FOR RESPONDENT / CHIEF VICTORIA ARCAND

Bradley Enge              FOR RESPONDENT

SOLICITORS OF RECORD:

Robert Hladun              FOR APPLICANT

Trina Kondro              FOR RESPONDENT / ALEXANDER FIRST NATION

Janice Agrios              FOR RESPONDENT / CHIEF VICTORIA ARCAND

Bradley Enge              FOR RESPONDENT