Date:
20100119
Docket: T-587-09
Citation: 2010 FC 62
Vancouver, British Columbia, January 19,
2010
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
THOMAS PHIL DENNIS,
OF THE ADAMS LAKE BAND,
RESIDENT AND AN ELECTOR AND
ON BEHALF OF MY RELATIVES AND
OTHER ADAMS LAKE BAND MEMBERS
Applicants
and
THE COMMUNITY PANEL OF THE
ADAMS LAKE INDIAN BAND AND
THE CHIEF AND COUNCIL ELECT
FOR THE TERM DESCRIBED AS 2009
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Thomas Phil Dennis challenging a
decision of the Community Panel of the Adams Lake Indian Band (Community
Panel) by which his appeals of a Band Council election were dismissed. Mr. Dennis
is a member of the Adams Lake Indian Band (Band) and was an unsuccessful
candidate in the Adams Lake Indian Band Council (Band Council) election
held on February 14, 2009.
[2]
Mr. Dennis
has challenged the dismissal of his appeals on several grounds, but it is only
necessary for the Court to consider his complaint that the Community Panel
exceeded its jurisdiction by failing to maintain a quorum.
I. Background
[3]
Mr. Dennis’
appeals from the February 14, 2009 election were brought under the Adams Lake Secwepemc
Election Rules (Election Code), which is a customary election code adopted by
the Band in a referendum held on November 27, 1996. On the strength of the
Band’s decision, the Band Council asked the Minister of Indian Affairs and
Northern Development (as he was then called) to exempt the Band from the
election rules imposed under s. 74 of the Indian Act, R.S.C. 1985, c.
I-5. The Minister acquiesced to this request and on November 25, 2000, he made
an order (SOR/2000-409) which repealed an earlier order requiring elections of
the Band to be conducted in accordance with the rules and procedures set out in
the Indian Act. This history is briefly acknowledged in the preamble to
the Election Code which states:
Now
it shall be known that the Adams Lake Indian Band has by way of a referendum of
the Band’s members repealed the election regulations established pursuant to
section 74(1) of the Indian Act and has hereby approved, in accordance
with section 2(1) of the Indian Act, the following Election Rules and
procedures to govern the election of members to the Adams Lake Indian Band
Council.
[4]
Under
the terms of the Election Code, appeals from Band Council elections can be
brought on the basis of allegations of corrupt practices, a violation of the
election rules that may affect the election results, or the ineligibility of a
candidate. An election appeal is taken to the Community Panel, the composition
and mandate of which is defined in Article 19 as follows:
A
Community Panel of five (5) persons shall govern and decide all proceedings
held to dispute an election held in accordance with these Election Rules or any
proceedings held to determine an application to remove a person from the office
of Band Council. The Community Panel shall conduct their proceedings in
accordance with this Part and with either Part VI or Part VII of these Election
Rules. The Community Panel will also be responsible for determining eligibility
based on the requirements stated in the Election Rules and approve the
nominee’s name to stand for election.
[5]
In
the event of a vacancy on the Community Panel, the Band Council is required by
Article 21(e) to convene a general band meeting to fill the position. The
Election Code makes no provision for a Community Panel quorum of less than five
members.
[6]
In
accordance with the Election Code, five members of the Community Panel were
selected by the Band on January 8, 2009.
[7]
On
January 24, 2009, a nomination meeting was held and nine candidates (including
Mr. Dennis) were nominated for election to Band Council and three
candidates were nominated for election to Chief. In the election of February
14, 2009, five members of Band Council were chosen. Mr. Dennis ran seventh
and fell 22 votes short of the total received by the fifth elected candidate.
[8]
On
February 18, 2009, the Community Panel received Mr. Dennis’ Notice of
Appeal which alleged a number of breaches of the election rules. Five
further appeals including another by Mr. Dennis were brought shortly
thereafter.
[9]
On
March 5, 2009, the Community Panel commenced its investigation into the
election appeals with interviews of the three electoral officers. This was
followed on March 14, 2009 with submissions from all of the appellants
including Mr. Dennis. On March 18 and 19, 2009, the Community Panel
reconvened to consider the appeals. During the course of those deliberations,
one of the members of the Community Panel abruptly resigned because of a
disagreement with the process. That member’s letter of resignation indicates
that his motive was to frustrate the work of the Community Panel and to thereby
place the appeals before “the community.” The affidavit of Maryann Yarama
describes what then took place:
On
March 19, 2009 mid-way through the Community Panel’s voting process, at
approximately 3:10 p.m., Rodney Jules tendered his resignation from the Community
Panel. The remaining Community Panel members and I sought legal advice in
regards to whether we should continue to vote on the alleged violations as a
four member panel. We were advised that the Community Panel, as part of its
governance power under the Rules, has the authority to determine if it shall
continue as a panel of four members and to make decisions on all the Election
appeals filed. We agreed to continue to vote on the alleged violations as a
four member panel and to render our decisions on the appeals within the
deadlines under the Rules.
On the same day the Community Panel rendered its
decisions on the appeals. Although it found that some technical breaches of the
election rules had occurred, those breaches were not found to be material to
the election results and the appeals were all dismissed.
[10]
The
question before the Court is whether the Community Panel acted beyond its
jurisdiction by proceeding to render its decisions in the absence of a full
complement of five members.
II. Analysis
[11]
No
issue arises in connection with the jurisdiction of the Court to determine this
matter because it is clear that the Community Panel is a federal board for the
purposes of obtaining relief under s. 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7: see Sparvier v. Cowessess Indian Band, [1993] 3
F.C. 142, [1993] F.C.J. No. 446 (QL) (F.C.T.D.) at paras. 13-15.
[12]
Whether
the Community Panel was authorized to render its decisions in connection with
Mr. Dennis’ appeals in the absence of one of its members is an issue going
to its jurisdiction and it must be reviewed on the basis of correctness: see Chieu
v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1
S.C.R. 84 at para. 24 and Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at paras. 50 & 59.
[13]
It
is well understood that the jurisdiction of a decision-maker is dependent upon
the maintenance of a proper quorum from the beginning to the end of the adjudicative
process. One of the leading authorities dealing with this issue is Parlee
v. College of Psychologists of New Brunswick (2004), 2004 NBCA 42, 270
N.B.R. (2d) 375 where these principles were expressed in the following way at
paras. 26-32 :
26 The
following statement from the reasons given by Dickson J.A. (later Chief Justice
of Canada) in Inter-City Freightlines Ltd. v. Manitoba (Highway Traffic
& Motor Transport Board) at para. 6, summarized the governing legal
principle:
A
quorum is the minimum number of persons required to constitute a valid meeting.
In this case three members of the Board were required to constitute a valid
meeting of the Board. In the absence of a quorum no business can be transacted,
the meeting is a nullity. It would seem beyond cavil that the proceedings of
the Board on June 15, June 16 and July 13 were a nullity.
27 This
Court in Re Cirtex Knitting Inc. recognized this principle. In that
case, it was submitted that the Chairman had resigned from the Board prior to a
decision being given on preliminary objections. It was argued that the
remaining two members had considered themselves capable of proceeding without
the Chairman. However, the Court found that there was no evidence that the
decision had been "arrived at when the Board was sitting otherwise than
with a quorum present." In setting out his reasons, Limerick J.A. adds,
however, at para. 26:
If
the decision of the Board were not a decision of the majority present and
sitting as a quorum, i.e. the Chairman and two other members it would be a
nullity... [Emphasis added.]
28 A
more recent statement of the same principle can be found in the decision of the
Federal Court of Appeal in IBM Canada Ltd. v. Deputy Minister of National
Revenue (Customs & Excise) where Décary J.A. expounded upon the
principle at para. 9:
...
a perusal of the jurisprudence that has examined questions related to quorum
indicates that the courts have consistently insisted on the necessity for a
decision-making authority to strictly comply with quorum requirements at all
times. A long series of cases have established a proposition which I would
venture to formulate as follows: in setting a quorum and requiring that a
minimum number of persons participate in a decision, Parliament reposes its
faith in collective wisdom, does so for the benefit of the public as well as
for the benefit of those who might be affected by the decision, and expects
those who participate in the decision either as members of the majority or as
dissenting members to act together up to the very last moment which is the
making of one united, though not necessarily unanimous, decision. Having the
proper quorum at all relevant times, from the beginning up to the very last
moment is a question of principle, of public policy and of sound and fair
administration of justice.
[Footnotes
omitted.]
29 It
is simply indisputable that where the quorum is set by statute, the prescribed
minimum number of members must carry out adjudication if it is to be valid,
unless the statute specifically provides otherwise: see for example Piller
v. Assn. of Land Surveyors (Ontario). Once a quorum hears a matter, a majority may decide the
issue: see s. 22(1)(d) of the Interpretation Act, R.S.N.B. 1973, c. I-13
and Reference Re Tarriff Board Act.
30 In
the present case, the relevant legislation and by-laws make no provision for the
resumption of a hearing before a Discipline Committee short of the quorum. In
fact, the wording of s. 11(2) of the Act clearly conveys the legislative intent
that the quorum requirement must to be respected throughout.
31 Two
questions remain: (1) is the governing legal principle applicable when the
quorum is set by by-law as opposed to the governing statute, and (2) may the
parties waive the quorum requirement?
32 Both
counsel sought to distinguish the cases which apply the principle requiring
strict adherence to quorum requirements from the present one on the basis that
the quorum requirement is not set out in the Act, but is instead prescribed in
the General By-laws. With respect, such a distinction is more illusory than
real.
[14]
The
failure to observe a quorum requirement cannot be excused or waived by the
parties and the resulting decision will be a nullity: see Parlee, above,
at para. 36.
[15]
Because
of the strictness of the quorum requirement, most statutes or by-laws by which
decision-making bodies are constituted make alternative provisions for the loss
of members. Section 22 of the Interpretation Act, R.S.C. 1985,
c. I-21, provides an example of this by authorizing a reduced quorum for a body
established under federal enactment. That provision states:
|
22. (1) Where
an enactment requires or authorizes more than two persons to do an act or
thing, a majority of them may do it.
(2)
Where an enactment establishes a board, court, commission or other body
consisting of three or more members, in this section called an “association”,
(a)
at a meeting of the association, a number of members of the association equal
to,
(i)
if the number of members provided for by the enactment is a fixed number, at
least one-half of the number of members, and
(ii)
if the number of members provided for by the enactment is not a fixed number
but is within a range having a maximum or minimum, at least one-half of the
number of members in office if that number is within the range,
constitutes a
quorum;
|
22.
(1) La majorité d’un groupe de plus de deux personnes peut accomplir les
actes ressortissant aux pouvoirs ou obligations du groupe.
(2) Les dispositions suivantes
s’appliquent à tout organisme – tribunal, office, conseil, commission, bureau
ou autre – d’au moins trois membres constitué par un texte :
a) selon que le texte attribue à
l’organisme un effectif fixe ou variable, le quorum est constitué par la
moitié de l’effectif ou par la moitié du nombre de membres en fonctions,
pourvu que celui-ci soit au moins égal au minimum possible de l’effectif;
|
[16]
The
Respondents argue that the quorum provision in s. 22 of the Interpretation
Act applies here because the Election Code constitutes an “enactment” as
that term is defined in ss. 2(1) of that Act.
This argument would only succeed if the Election Code was made in the execution
of a power conferred either under the Indian Act or by the authority of
the Governor-in-Council. The problem for the Respondents is that the Election
Code is not a creature of the Indian Act, but was made under the
inherent authority of the Band. Section 74 of the Indian Act creates an
exception to the right of a band to establish its own election rules by
requiring the Minister to issue an order before the Indian Act rules can
apply to band elections. In short, the Indian Act does not confer upon a
band the right to establish its own election rules; it merely removes the
inherent right of a band to do so by ministerial order.
[17]
The
fact that the Minister may review a custom election code under the Department’s
Conversion to Community Election System Policy before he makes an
amending order under s. 74 of the Indian Act does not mean that such a
code is thereby made in the execution of a power conferred by or under the
authority of the Indian Act.
[18]
It
is only where a band election is governed by the Indian Act rules that
the quorum provision in the Interpretation Act would apply. There is
nothing untoward about this because it is up to each band to determine the
measures that ought to be applied to its elections, including election appeals.
The Adams Lake Indian Band has done that and, absent a Charter breach,
it is not the role of the Court to rewrite those rules. Indeed, it would be
presumptuous for the Court to assume that the clear stipulation of a five-member
Community Panel was anything other than deliberate or that, after removing band
elections from the purview of the Indian Act, the Band was indirectly relying
upon s. 22 of the Interpretation Act as the means for modifying the
stated quorum of five.
[19]
The
Respondents also argued that it was open to the Community Panel to act as it
did because, under Article 22 of the Election Code, it was authorized to establish
its own rules of conduct. I do not agree that the decision in Faghihi v. Canada (Minister of Citizenship
and Immigration) (1999),
[2000] 1 F.C. 249, 173 F.T.R. 193 (F.C.T.D.), affirmed (2001), 2001 FCA 163,
274 N.R. 358 supports this argument. The Court in Faghihi, above,
expressly held that the statutory scheme it was reviewing did not require a two-member
panel to deal with a motion which was said to be on the periphery of its
jurisdiction. In other words, the quorum requirement of one member had been met
in that case. It was then left to the decision-maker to determine whether the
appointment of an additional member was warranted.
[20]
Although
a decision-maker’s authority over procedure is often liberally applied, its
scope is not broad enough to cure jurisdictional deficiencies or breaches
of the duty of fairness. The maintenance of a proper quorum is a fundamental
jurisdictional requirement that cannot be excused by the right of a
decision-maker to determine its own procedure or, as noted above, by the
consent of the parties.
[21]
The Respondents
point out that the strict enforcement of a quorum requirement in this case will
create some political uncertainty and impose administrative burdens on the
Band. The Election Code, however, recognizes the right of the present Band
Council to continue to function in the face of an election appeal. While there
will certainly be some added costs and inconvenience arising from reconvening
the Community Panel to rehear Mr. Dennis’ appeals, that is the price that
is paid to ensure that this important jurisdictional requirement set by the
Band is fulfilled. These are not considerations which ought to stand in the way
of the grant of discretionary relief in this case.
[22]
I
would only add that there is no evidence before me that the Community Panel
which dealt with these appeals acted unfairly or inappropriately. The members sought
legal advice and were advised that they could continue. They proceeded
diligently to determine the appeals in a timely way and they were naturally
concerned that the investigation they had conducted not be wasted by the
unfortunate and very late resignation of one member.
[23]
Given
the apparent good faith of the Community Panel, there is no reason why the four
members who participated in this process should be excluded from participating
again if they so choose and the Band agrees. However, it is up to the Band to
reconstitute the Community Panel for the purposes of reconsidering Mr. Dennis’
appeals.
[24]
Mr. Dennis
is entitled to an award of costs in recognition of his success on this
application. Costs are awarded to him in the amount of $1,500.00 inclusive of
disbursements payable by the Respondents or either of them.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application for judicial review is
allowed and the decisions of the Community Panel with respect to the
Applicant’s appeals are set aside. Mr. Dennis’ appeals must be
re-determined on the merits by a newly constituted Community Panel. The
Respondents shall pay the Applicant’s costs in the amount of $1,500.00
inclusive of disbursements.
“R.L. Barnes”
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