Date:
20121109
Docket: T-988-11
T-992-11
Citation:
2012 FC 1307
Ottawa, Ontario,
November 9, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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ANITA MEMNOOK,
RICHARD STARR, BERNARD AWASIS and MARILYN WAPASS
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T-988-11
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Applicants
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and
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DELBERT WAPASS,
HAROLD JIMMY, NORMAN MOYAH, DOLORAS THUNDERCHILD, JAMES SNAKESKIN, ARNOLD WAPASS, GERALD OKANEE,
BILL (WAPASS)
YELLOWHEAD
and ERNIE JIMMY
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Respondents
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AND
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RICHARD STARR,
BERNARD AWASIS and MARILYN WAPASS
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T-992-11
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Applicants
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and
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DELBERT WAPASS,
HAROLD JIMMY, NORMAN MOYAH, DOLORAS THUNDERCHILD, JAMES SNAKESKIN, ARNOLD WAPASS, GERALD OKANEE,
BILL (WAPASS)
YELLOWHEAD
and ERNIE JIMMY
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
parties are members of the Thunderchild First Nation, a band under the Indian
Act, RSC, 1985, c I-5. The applicants seek judicial review of two
decisions of the Thunderchild First Nation Appeal Tribunal (Appeal Tribunal),
both dated May 16, 2011, dismissing the applicants’ application for a
Non-Compliance Order, the import of which will be described later, and
dismissing the applicants’ appeal of an election result pursuant to section
14.02 of the Thunderchild First Nation Election Act (Election Act).
For the reasons that follow, the applications are granted.
[2]
The
Appeal Tribunal is established pursuant to the Thunderchild First Nation
Appeal Tribunal Act (Tribunal Act) to hear and resolve conflicts
relating to all matters within the band’s jurisdiction, including disputes over
elections.
Background
[3]
The
terms of the incumbent Chief and Band Council of the Thunderchild First Nation
expired on October 18, 2010. An election for Chief and Council was scheduled
for October 18, 2010, but was postponed on October 15, 2010. To prevent a
hiatus in governance, the Band Council passed a resolution establishing an
Interim Operating Committee (IOC). The legitimacy and authority of the IOC is
not in question. The preamble to the resolution establishing the IOC reads
provides:
And Whereas the Thunderchild First Nation
elects its Chief and Council pursuant to the Thunderchild First Nation
Election Act;
And Whereas the term of the current Chief
and Council expires on October 18, 2010 and there will be no Chief and Council
between October 19, 2010 and for a minimum of 60 days or until a new Chief and
Council is elected (“the Interim Period”).
And Whereas it is in the interests of
Thunderchild First Nation to insure that during this interim period essential
services be provided and contractual obligations be met and require an interim
operation committee to be established;
[4]
The
resolution gave the IOC the authority to maintain the financial and
administrative affairs of the Band, including the authority to enter into
contracts, institute and maintain legal actions and to discipline, but not to
terminate, employees of the Band.
[5]
Despite
the postponement of the election, the validity of which is also not in issue,
the Chief Electoral Officer and her Deputy proceeded to hold an election at a
private residence. This putative election resulted in the respondent, Delbert
Wapass, being elected Chief and other respondents being elected and declared as
Chief and Council members.
[6]
The
Appeal Tribunal subsequently determined this election to be null and void and
issued an Order to this effect on October 19, 2010. The Tribunal also directed
that the Thunderchild First Nation election be held on December 20, 2010 and
that it be conducted in accordance with the duties and obligations prescribed
by the Election Act.
[7]
The
applicants state that Mr. Wapass and other respondents nonetheless purported to
act as Chief and Council, executed Council resolutions and sent correspondence
in which they held themselves out as Chief and Council. The respondents, for
their part, state that they validly acted as Chief and Council during this
time, as the Thunderchild First Nations Elders had voted to respect the October
18, 2010 election results.
[8]
In
response to this situation of what would appear to be dual or competing claims
to the leadership of the Band, a member of the Band, Jerry Okanee, submitted a
Notice of Application to the Appeal Tribunal pursuant to section 12.01 of the Tribunal
Act, alleging that the respondents had failed to comply with both the
October 19, 2010 Order which rendered the election void and the resolution of
the Band vesting interim authority in the IOC. This is the origin of the
Non-Compliance Order.
[9]
The
election was held on December 20, 2010, as directed by the Appeal Tribunal.
Mr. Wapass was elected Chief, and some of the same respondents were elected to
the Council. Mr. Okanee then filed a Notice of Appeal to the Appeal Tribunal
pursuant to section 14 of the Election Act, alleging a number of
improper and prohibited practices by the respondents in the election.
[10]
The
applicants, who were not named parties on the appeal to the Appeal Tribunal,
state that they were initially kept apprised of the appeal proceedings. They
learned, however, that in April 2011 that Mr. Okanee had met with a
representative of the respondents and withdrawn the Notice of Application and
the Notice of Appeal. The applicants emphasize that this withdrawal was done
unilaterally by Mr. Okanee without consulting any of them. As a result, the
applicants filed a Notice of Application, virtually identical to that of Mr.
Okanee, on April 12, 2011. Importantly, the applicants also filed a Notice of
Appeal on April 20, 2011. The Notice of Appeal included a request that the
Appeal Tribunal exercise its discretion to extend the time period for filing a
Notice of Appeal, pursuant to section 14.04 of the Tribunal Act.
[11]
By
letters dated May 16, 2011, the Appeal Tribunal dismissed the request to extend
the period of time within which to appeal and the Notice of Appeal, without
costs. The Appeal Tribunal also dismissed the application for the
Non-Compliance Order. The letters both stated: “Your application is barred by
section 14.02 of the Thunderchild First Nation Election Act”.
[12]
For
reasons that will become clear, it is important to note the reference to “s.
14.02”, which pertains to the Appeal Tribunal’s jurisdiction in respect of
election appeals.
Standard of Review and Issues
[13]
These
applications raise two issues. The first is whether the Tribunal erred in
disposing of the non-compliance proceedings commenced by Mr. Okanee in respect
of the alleged usurpation of the decision to establish the IOC, and in respect
of the decision of the Tribunal to dismiss the appeal lodged in respect of the
December 20, 2010 election. Embedded in this second question is whether the
Appeal Tribunal properly considered the request to extend the period of time
within which an appeal could be filed. The parties agree that true questions
of jurisdiction (addressing the wrong statutory provision and procedural
fairness) and are reviewed on a standard of correctness: Dunsmuir v New Brunswick, 2008 SCC 9; Shotclose v Stoney First Nation, 2011 FC 750, at
para. 57.
[14]
While
the parties make several arguments regarding procedural fairness and regarding
the underlying disputes about the fairness of the election, the determinative
issue in these applications is whether the Appeal Tribunal’s erred in
determining it had no jurisdiction to consider the application and the appeal because
of a limitation period.
[15]
While
the two applications arise from a common and interrelated set of facts, and
their disposition is governed by the same principles, they require separate
consideration. I will address each decision separately, since the limitation
periods are prescribed in discrete sections of the Tribunal Act.
The Evidence
[16]
Counsel
for the respondent objected to the content of many of the affidavits put in
evidence. The affidavits before this Court contain considerable evidence that
was not before the Tribunal when it rendered the two decisions in issue.
Secondly, the affidavits were also directed to the merits of the arguments of
the appeal and non-compliance issues.
[17]
As
the affidavits contained some uncontested procedural history necessary to frame
the issues, they will not be struck in their entirety. Beyond that however,
the affidavits will be disregarded by the Court. Both counsel agreed to this
approach, to which I add that counsel on the application was not counsel who filed
the affidavits.
Application for
Non-Compliance Order (T-988-11)
[18]
As
noted, on April 12, 2011, the applicants filed the Notice of Application to the
Appeal Tribunal for a Non-Compliance Order. The applicants allege that the
respondents, in holding themselves out as the duly elected Chief and Council,
violated the Appeal Tribunal’s Order postponing the election from October to
December 2010.
[19]
A
“non-compliance order” is a defined term in the Tribunal Act. Section
1.01 provides:
“Non-compliance Order” means an Order on the issue of
the refusal without a reasonable explanation of an individual or the Government
to comply with a decision of the Appeal Tribunal or Order
[20]
Section
12 of the Tribunal Act addresses non-compliance proceedings. It is
discrete and separate from section 14, which addresses appeals in respect of
elections.
[21]
Section
12 provides that the Tribunal may, on a finding of non-compliance, issue the
following orders:
[…]
(a) Order that the employment of
the individual with Thunderchild First Nation or an Empowered Entity be
terminated for cause, or have any contract between the individual and
Thunderchild First Nation or an Empowered Entity terminated for cause;
(b) Order that the individual
not be hired as an employee or awarded a contact with Thunderchild First Nation
or an Empowered Entity for up to ten (10) years;
(c) Order that the individual be
disqualified from holding any official position with Thunderchild First Nation
or an Empowered Entity for up to ten (10) years;
[…]
[22]
The
Appeal Tribunal’s jurisdiction to hear applications in respect of decisions of
the “Government” is prescribed by section 7 of the Tribunal Act. It
prescribes a sixty day appeal period.
7.08 Subject to specific provisions in
Legislation governing time limitations of an Application against the
Government, the Appeal Tribunal has no jurisdiction to hear an Application for
a review of a decision of the Government, an Empowered Entity or an Empowered
Person unless such appeal is received by the Appeal Tribunal within sixty (60)
days after the date that the subject decision of Government, and Empowered
Entity or an Empowered Person was made.
[23]
In
contrast, where the dispute is between persons “not being the Government” the
application must be brought within two years.
7.09 The Appeal Tribunal has no jurisdiction to
hear an Application to resolve a conflict as between persons, not being the
Government, an Empowered Entity or an Empowered Person unless the Application
is received by the Appeal Tribunal within the time specified in the Legislation
and if no time limit is specified then the time limit is two (2) years from the
date the cause of action arose.
[24]
The
thrust of the applicants’ case before the Tribunal was that the respondents
were illegally purporting to be Chief and Council, and therefore were not the
“Government” at the relevant time. Therefore, this was a conflict “as between
persons” and the limitation period of two years had not passed. The
respondents argue that they clearly were acting as the Government, and in the
alternative, even if they were not the “Government”, by the time the
application was filed they had been properly elected as the Government, and
therefore the limitation period (60 days) had passed and the Appeal Tribunal
had no jurisdiction.
[25]
In
my view, this argument is largely beside the point. The Appeal Tribunal found
it had no jurisdiction to hear the application pursuant to section 14.02 of the
Election Act. That provision had no relevance to the application at
issue. The application was for a non-compliance order pursuant to the Tribunal
Act and governed by Section 12; it was not an appeal of the election.
Section 14.02 is of no relevance in considering the Non-Compliance Application.
[26]
The
respondents argue that this was simply an oversight. The respondents concede
that while the reasoning was incorrect, the outcome was correct, and should not
result in the decision being quashed. However, without any additional reasons
from the Appeal Tribunal, the Court has no basis to infer, as the respondents
would like, that the Appeal Tribunal properly understood its jurisdiction and
the question before it. At no point did the Appeal Tribunal consider, in the
face of the IOC and invalidity of the putative election, whether the respondents
constituted or purported to constitute the “Government” at the relevant time,
and therefore it never identified the relevant limitation period under the Tribunal
Act. There is a compelling argument to be made that the respondents were
not, in light of the order declaring the election void either “the government”
as defined, or an “empowered person” as defined. If that is the case, the
dispute is between persons and governed by the two year limitation period.
[27]
A
determination on this question was an essential precondition to the exercise of
jurisdiction by the Tribunal. It could not make a legally informed decision to
dismiss the application for non-compliance by the respondents on the basis of
the limitation period unless it considered the questions of section 7.08 and
section 7.09. Indeed, given that the respondents purported to exercise
electoral power during the hiatus between elections during which the governance
authority was unequivocally, vested in the IOC, it was an error of law for the
Tribunal to fail to consider the applicability of section 7.09.
[28]
The
respondents note that the standard by which the adequacy of reasons is assessed
is not perfection, and must take into account the nature of the decision maker
and the decision itself. This is not disputed by the applicants. However
generously the Court reads the decision, it cannot save the decision in
question. In referring to section 14.02 the Tribunal addressed the wrong
provision, and there is no indication that it turned its mind to the correct
provision, section 7.09. The latitude in assessing the reasoning to which the
case law refers is directed to those situations where, in an effort to support
the reasons, the Court examines the record to better assess, whether when read
in context, they meet the reasonableness standard: Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
para. 12; and Dunsmuir, para. 48
[29]
This
case law has no application where the Tribunal simply did not address the very
issue before it. No amount of reading in, rounding out or contextualization
can save the decision. Thus, the Appeal Tribunal erred in this decision, and
the application must be granted.
Appeal over election
results (T-992-11)
[30]
The
applicants filed the Notice of Appeal on April 20, 2011. The election occurred
on December 20, 2010. The applicants acknowledged that their appeal was filed
outside the limitation period of 30 days, as prescribed by section 14.02 of the
Election Act. In filing the appeal, they specifically asked that the
Appeal Tribunal exercise its discretion to extend the time period for filing
the appeal, pursuant to section 14.04 of the Tribunal Act. That
provision states:
14.04 The Appeal Tribunal Panel and if no panel, then
the Registrar, may extend or shorten a period provided by Legislation or fixed
by an Order.
[31]
“Legislation”
is defined in section 1.01 of the Tribunal Act as “legislation of
Thunderchild First Nation, as amended from time to time, and passed under the Constitution,
and includes the Constitution itself”. Thus, it includes, on the plain
and obvious reading of its terms, the Election Act. The respondents
argue however that this provision should not be interpreted as applying to the
time period in the Election Act, because that statute also requires that
the Notice of Appeal be filed with the Chief Electoral Officer. Since the
Chief Electoral Officer ceases to hold office 30 days after an election, the
respondents assert, the legislators must not have intended for appeals to be
considered past the deadline.
[32]
In
my view, this is an overly formalistic interpretation and runs contrary to the
requirement that statutes are to be read together in a harmonious manner that
is consistent with their purpose and object. Section 14.04 of the Tribunal
Act grants the Appeal Tribunal a broad discretion to extend time periods in
all legislation of Thunderchild First Nation. The provision contains no
exceptions or limitations. Secondly, it would be absurd to read this provision
down based on a procedural provision in the Election Act, or the
provisions directed to the tenure of the Chief Electoral Officer. On this
interpretation, there would be no recourse to appeal or set aside an election
result in circumstances where the fraud or unfair practices were discovered
after the 30-day period. The preferred interpretation of this provision,
consistent with the purpose and object of the legislation, is that it is
intended to ensure the timely administration of the election process itself and
to ensure the Chief Electoral Officer completes his or her responsibilities
with dispatch.
[33]
As
to the merits of the request that the time be extended, there is no discussion
in the decision whether section 14.04 of the Tribunal Act applies, or
any recognition that section 14.04 exists at all. Thus, I find that the Appeal
Tribunal failed to exercise its jurisdiction, and the application can be
granted on this basis alone.
[34]
I
also set aside the decision on the basis of procedural fairness. The Tribunal
received a letter dated April 28, 2011 from counsel for the respondents, urging
that the Tribunal dismiss the appeal as being beyond the 30-day period.
Counsel made the following objections:
•
Mr.
Gerald Okanee, the original appellant, had withdrawn his appeal. The “new”
appellants, who treated Mr. Okanee’s appeal as “their” appeal, had no right to
appeal.
•
In
relying on the appeal of Mr. Okanee, the applicants may run afoul of the rules
of champerty and maintenance.
•
“Outsiders”
are identified and said to be meddling in the affairs of Thunderchild, and that
it is “absolutely outrageous” that this has occurred.
•
The
situation is “ridiculous and offensive” “…and the entire Thunderchild First
Nation is being held for ransom by a handful of disgruntled persons…”
[35]
Counsel
did not send a copy of this letter to the applicants, though their identity and
residence was evidently known to him. The Tribunal did not circulate a copy of
the letter to the applicants. In consequence, the applicants had no knowledge
of the arguments that were considered by the Tribunal and put against them by
the respondents.
[36]
On
May 16, 2011, the applicants were advised by counsel that their appeal
application was dismissed. The decision letter provided:
In consultation with the Appeal Tribunal on May 16,
2011, I advise that your Appeal Application dated April 20, 2011 is dismissed
without costs. Your application is barred by section 14.02 of the Thunderchild
First Nation Election Act.
[37]
The
jurisprudence is unequivocal as to the fundamental importance of natural
justice and procedural fairness in band governance issues: Bruno v Samson
Cree Nation, 2006 FCA 249. This principle is imbedded, although
unnecessarily so, in the Tribunal Act. Section 5.05 provides:
The Appeal Tribunal in the course of exercising its
power under the Act shall:
(a) Observe all principals of
natural justice, procedural fairness or other procedure that it is required by
Legislation to observe;
[…]
[38]
It
is readily apparent to any fair minded observer that the respondents ought to
have been given an opportunity to make submissions in respect of why they could
maintain the existing appeal, or, in the alternative, be allowed an extension
of time within which to file a new appeal responding to the allegations set
forth in counsel’s letter. The record shows that they have bona fide
arguments to make in response to some of the assertions.
[39]
The
affidavits suggest that the appeal was understood by the applicants as being
representative and that they had relied on Mr. Okanee to proceed. Whether this
is established at the end of the day or not, and, if so, whether it is
compelling in the weighing of factors whether or not to exercise their
discretion to extend the period of time is not material at this point; rather what
is material is that the applicants had a right, under the Tribunal Act
and the rules of procedural fairness, to make submissions, to notice of what
was put against them and an opportunity to reply. They were also entitled, as
a matter of natural justice, to have the Tribunal consider their request to
extend the time within which their appeal could be filed. The Tribunal did not
address the question before it, and if it did, provided no reasons in support
of its exercise of discretion, if it in fact directed its mind to the request.
In either case, the decision cannot stand.
[40]
There
remains the issue of bias. While I have concerns arising from the precipitous
manner in which the Tribunal rendered its decision, from the failure to provide
an opportunity to respond to counsel’s letter, and for failing to provide an
opportunity for a hearing on the merits of the request it is unnecessary, in
light of my findings, to address this issue.
Costs
[41]
The
parties were invited to make submissions on costs. In those submissions, the
applicants indicated that they sought costs against the Thunderchild First
Nation, which was not a party to the application. The Court directed that the
submissions be served on the Thunderchild First Nation and that it be provided
an opportunity to respond (by October 12, 2012). No submissions were received.
[42]
The
respondents object to the payment of costs, contending that each party should
bear its own costs. The respondents say that there are no broad issues of band
governance or important issues of law, which would warrant the award of costs.
[43]
In
the ordinary event, costs follow the event, unless special reasons can be
shown, in the conduct of the successful party, or in the conduct of the case,
to warrant departing. No such rationale has been identified here. The
respondents contend that the decision in question was that of the Appeal
Tribunal and they should not bear the consequence of the Tribunal error. This
argument has no merit. To avoid costs by suggesting that it was the error or
responsibility of the Appeal Tribunal or court would, in effect, insulate
unsuccessful parties to a proceeding. With respect to the argument that the
applicants are, in effect, the cause of the problem as they were late in filing
their appeal, it is sufficient to note the role of the respondents in the
underlying facts which gave rise to the proceedings before the Appeal
Tribunal. Moreover, the respondents opposed the applicants’ request for an
extension of time, when they could have consented. Presumably, their counsel’s
letter to the Appeal Tribunal was not copied to the applicants, precipitating
the breach of procedural fairness. Finally, the respondents’ position on costs
is inconsistent with their pleading on the merits of the judicial review
application, wherein they argue that even if there were issues in the putative
election, they were regularized by the December 18 election, at which time they
became “the government”. The respondents cannot at the same time argue that
they are not part of the government, and seek to displace the presumption that,
as government, they will be indemnified by the Band: Bellegarde v Poitras,
2009 FC 1212.
[44]
To
conclude, I am satisfied, for the reasons advanced by the applicants, that this
is an appropriate case to award costs against the third party. The issues
raised address important questions of band governance, touching interests
beyond those of the immediate case. I am also satisfied, given the length of
the pre-trial proceedings, the award of costs requested at Column III is
justified. Indeed, the respondents concede that the request is not excessive.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
applications for judicial review are granted.
2.
The
decision of the Thunderchild First Nation Appeal Tribunal, dated May 16, 2011
to reject the non-compliance application is quashed.
3.
The
non-compliance application is remitted to the Thunderchild First Nation Appeal
Tribunal requiring that Tribunal to accept the non-compliance application and
to set a hearing date as provided in the Thunderchild First Nation Election
Act.
4.
The
decision of the Thunderchild First Nation Appeal Tribunal, dated May 16, 2011
to reject the Notice of Appeal from the applicants is quashed.
5.
The
pre-existing Notice of Appeal reinstated and the Tribunal directed to proceed
with consideration of the applicants’ request for leave to extend the period of
time within which a Notice of Appeal might be filed under the Thunderchild
First Nation Election Act.
6.
Costs
to the applicants in the amount of $8,923.00, payable by Thunderchild First
Nation.
"Donald J.
Rennie"
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