Date: 20090210
Docket: T-230-08
Citation: 2009 FC 133
Toronto, Ontario, February 10, 2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
NAPOLEON
JAMES SEYMOUR
Applicant
and
ANISHINAABEG OF NAONGASHIING
as represented by CHIEF WESLEY BIG
GEORGE,
COUNCILLOR ROBERT HANDORGAN,
and ELECTORAL OFFICER, VALERIE PIZEY
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
On
this application Napoleon James Seymour challenges the lawfulness of a decision
to remove him as a Band Councillor. He also contends that the process employed
by the Respondents to remove him from Council was in breach of the duty of
fairness.
I. Background
[2]
As
a result of a number of allegations of misconduct made against Mr. Seymour
the Respondent, Anishinaabeg of Naongashiing, initiated a process under its
Custom Election Code (Code) seeking to remove him as a Band Councillor. The
process started with a general meeting of the Band held on December 6, 2007
where the issue of Mr. Seymour’s removal from office was discussed among
other items of business. It was decided that a special meeting of the Band
electorate should be convened to consider Mr. Seymour’s removal from Council
as authorized by Article 7 of the Code. That special meeting was scheduled for
January 12, 2008.
[3]
The
evidence before me dealing with the Band’s notice to the electors of the special
meeting is not particularly detailed. The record indicates that the method of
notification was in accordance with the past practices of the Band. It is also
clear that a written notice of the meeting was posted in the Band Office and that
a form of notice was published in several local newspapers. The only evidence
I have concerning the date of publication of the newspaper notices is a copy of
the advertisement dated January 10, 2008. That notice stated:
TO ALL MEMBERS OF THE ANISHINAABEG OF
NAONGASHIING
(BIG ISLAND FIRST NATION)
There will be a meeting held in the
Resource Centre at Saug-a-gaw-sing I.R. #1 on Saturday January 12th,
2008 at 1:00 p.m.
This meeting is a follow-up to the
meeting held on December 6th, 2007.
And is of great importance to the
community. All members are urged to attend.
For further information please contact
the office at: 807-488-5602 or toll free 1-888-238-0102.
The affidavit of the Electoral Officer,
Valerie Pizey, explains that the lack of information in this notice about the
purpose of the meeting was deliberate and intended to protect
Mr. Seymour’s reputation.
[4]
The
evidence from Ms. Pizey also establishes that at the date of the special
meeting there were 234 qualified Band electors of whom 61 attended the meeting.
Mr. Seymour’s affidavit deposes that approximately 79% of the Band electors
(189) lived off the reserve. It is undisputed that of the 61 electors who
attended the special meeting only about 19 lived off the reserve. After some
discussion, including representations from Mr. Seymour and his legal
counsel, a vote was held. Of the 58 votes cast, 57 were in favour of
Mr. Seymour’s removal and 1 was against. The results of the vote of the
electorate were then confirmed by resolution of the Band Council passed on
January 14, 2008 wherein Mr. Seymour’s position was declared vacant and a
by-election was authorized. On March 13, 2008 a by-election was held to fill
the vacant Council position. Mr. Seymour sought re-election but lost to
another candidate.
[5]
In
this proceeding Mr. Seymour challenges the process by which he was removed
from office on the basis that the Respondents failed to comply with the
requirements of the Code and that the process followed was in breach of the
duty of fairness.
II. Issues
[6]
(a) Did
the process followed by the Respondents to remove Mr. Seymour from the Band
Council comply with the requirements of the Code?
(b) Did
the process followed by the Respondents to remove Mr. Seymour from the Band
Council give rise to a breach of the duty of fairness?
(c) Should
the Court grant the relief requested?
III. Analysis
Jurisdiction
and Standard of Review
[7]
The
parties agree, as do I, that this Court has jurisdiction over the issues raised
in this proceeding: see Sparvier v. Cowessess Indian Band, [1993] 3
F.C. 142, [1993] F.C.J. No. 446 at para. 13. The issue of the lawfulness of
the process used to remove Mr. Seymour from office involves a matter of
legal interpretation for which the standard of review is correctness. The
issue of procedural fairness must also be resolved on the basis of correctness
and in accordance with the principles expressed below from Sparvier, at
para. 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.
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,
S.C.C. File # 22382, October 29, 1992, where at page 33 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.
Did the Process Followed by the Respondents
to Remove Mr. Seymour from the Band Council Comply with the Requirements of the
Code?
[8]
Mr.
Seymour argues that his removal from office was effected through an
unauthorized process and was contrary to the requirements of Article 6 of the
Code. Article 6 deals with Council vacancies. In the event of a vacancy on
Council or in the position of Chief, Article 7 provides for the holding of a
by-election. Those provisions state:
6. Vacancies, Resignation,
Recall and Removal
a.
The office
of the Chief or a Councillor will become vacant when the person holding such
office:
i.
dies,
resigns or is otherwise unwilling to continue to hold their office;
ii.
is
determined by a court of competent jurisdiction to be a mentally incompetent
person;
iii.
is an
undischarged bankrupt person;
iv.
is
voted by the Electorate to be removed from their office by a vote of fifty-one
(51%) percent of the persons voting in favour of the removal where at least
twenty five (25%) percent of the Electorate are present for the vote; or
v.
forfeits
the office in accordance with paragraphs 6.b. or 6.c.
b.
The Chief
or a Councillor who during the term of their office is convicted of an
indictable offence, except in the pursuit or defense of, or in the exercise of
aboriginal and/or treaty rights shall automatically forfeit their office.
c.
The
Chief or a Councillor who during the term of their office is found guilty in
any court of a misdemeanour involving misconduct reflecting on the dignity and
integrity of Anishinaabeg of Naongashiing, Malfeasance in office, or gross
neglect of duty, may be removed from office by a majority vote of the
Electorate at a meeting called for that purpose with at least twenty five (25%)
percent of the Electorate present at the meeting. Before any vote is referred
to the Electorate by Council as provided by this subparagraph, such Councillor
shall be given a written statement of the charges and shall be given an
opportunity to answer to the Electorate at the meeting called by the Council
for that specific purpose. The decision of the Electorate shall be final.
d.
Any
Councillor or the Chief may resign from office by tendering a written
resignation to the Council, and upon receipt thereof by the Council it will
become effective.
7.
By-Elections
a.
In the
event of a vacancy in the Office of Chief or a Councillor, and provided that no
less than six (6) months remains in the term of the vacated office the remaining
Council members will instruct the Electoral Officer to call a By-Election to
fill and complete the remaining term of the vacant office within thirty (30)
days after the vacancy has taken effect. […]
[Emphasis added.]
[9]
It
is clear from the record that the decision to remove Mr. Seymour was made under
Article 6(a)(iv) of the Code during the special meeting of the electorate
held on January 12, 2008. Mr. Seymour contends, however, that the only basis
for removing a Councillor is for cause as described in Articles 6(b) and 6(c).
He says that Article 6(a)(iv) does nothing more than recognize, as one type of
vacancy among the several listed, the removal of a Councillor under Article
6(c). He says that if Article 6(a)(iv) was intended to provide a stand-alone
authority for the removal of a Councillor there would be no purpose served by
Article 6(c) which authorizes removal upon a finding of guilt based on proof of
misconduct.
[10]
Article
6 of the Code is not particularly well drafted but I do agree with counsel for
the Respondent that it does provide for two different methods for removing a
Councillor from office. Article 6(a)(iv) establishes a form of political
recall by the electors which does not require any evidence of misconduct.
Article 6(c), on the other hand, provides for the removal of a Councillor for
cause and, in that event, stipulates that certain procedural steps must be
followed. While one might question why the Band would ever resort to removal
of a Councillor under Article 6(c) for cause when a simpler process is
available under Article 6(a)(iv), this is a judgment to be exercised in the
political realm and not the judicial. My view of this is reinforced by
reference to Article 6(a)(v), which distinguishes vacancies resulting from a
political recall under Article 6(a)(iv) from vacancies resulting from a
forfeiture of office for misconduct under Articles 6(b) and 6(c). Unless these
provisions were intended to provide separate processes for removal, Article 6(a)(v)
is meaningless.
[11]
I
am satisfied, as well, that the voting requirements established by Article 7 of
the Code were met. There was a sufficient quorum present and the vote
overwhelmingly supported Mr. Seymour’s removal from office. The evidence
concerning the alleged incapacity of three of those attending the special
meeting is not compelling and I do not accept it.
Did the Process Followed by the
Respondents to Remove Mr. Seymour from the Band Council Give Rise to a Breach
of the Duty of Fairness?
[12]
Mr.
Seymour points out that his reputation and his continuing right to hold office
were at stake in the recall process. There is no doubt that these were
important interests sufficient to attract a duty of fairness: see Sparvier,
above. Although Article 6(a)(iv) provides for no specific procedural
safeguards around a special meeting of the electorate, Article 9 speaks to the
importance of electoral fairness and impartiality. It is also at least
implicit in Article 9(i) that electoral notices are required to be
effective. The Respondents do not dispute that these basic principles of due
process apply to the removal of a Councillor.
[13]
On
the issue of effective notice I subscribe to the views expressed in the
following passage from Lakeside Colony of Hutterian Brethren v. Hofer, [1992]
3 S.C.R. 165 at paras. 81 and 82:
81 Likewise in Young v. Ladies'
Imperial Club, [1920] 2 K.B. 523 (C.A.),
the notice indicated only that the conduct of a particular member would be
reported on and discussed. The court held that this was insufficient notice to
allow for a decision to expel. Sterndale L.J. agreed that it would be
sufficient if the notice made it quite clear to everyone what would happen at
the meeting, but decided that the notice in question did not even convey in
substance what would happen (at p. 531):
I quite agree with what has been said to
the effect that one ought not to examine this agenda and these notices of
meetings too particularly and too meticulously; if in substance they convey to
the members of the committee what is going to be done, that is sufficient,
although one might have thought it might have been better done.
82 As is apparent in Young,
adequate and timely notice is as important for two reasons. First, it gives the
person who may be expelled an opportunity to consider his or her position and
either see the error of his or her ways and seek reconciliation, or prepare to
defend himself or herself. Second, adequate and timely notice allows the
members of the group who are to make the decision an opportunity to ensure that
they will be able to attend the meeting and contribute to the discussion, or
perhaps to ask for an adjournment if they are unable to attend.
Also see McLeod Lake Indian Band v.
Chingee, [1998] F.C.J. No. 1185, 165 D.L.R. (4th) 358.
[14]
Mr.
Seymour complains that the notices of the special meeting of the electorate on
January 12, 2008 were profoundly deficient in both content and
distribution.
[15]
The
Respondents say that some latitude or discretion must be allowed for the
provision of notice to the electors and that the means adopted by the Electoral
Officer were in conformity with past practice and, in practical terms,
effective. The Respondents contend that the proof is in the pudding and that
approximately 26% of the electorate appeared for the special meeting including
19 off-reserve members.
[16]
The
evidence before me indicates that there were 189 voting members of the Band living
off-reserve. Although one could expect a higher level of absenteeism from
members living away from the reserve, the fact that only about 10% were present
for the special meeting suggests that notice to the off-reserve membership may
have been inadequate. It also stands to reason that in the relatively brief
period between the publication of these notices and the date of the meeting (2
days) the typical informal methods of word getting around among off-reserve
members did not have enough time to work.
[17]
To
my mind effective distribution of notice of a meeting of such importance
requires more than a one-time publication in a handful of local newspapers
printed two days before the meeting. With a total membership of only 234,
effective notice to the electors could be accomplished at minimal expense by
mail or by phone. I have no evidence that the Band does not have current
contact information for its members and it would be both surprising and of
concern if it did not. In fact, Article 13 of the Code describes a process for
mail-in balloting for Band elections. That provision requires the Electoral
Officer to keep a record of the addresses for all electors to whom a mail-in
ballot was sent by mail or otherwise and to provide the ballots to electors no
later than 37 days before the election. The provision of a timely notice of a
special meeting of electors could have been accomplished by direct mail, and it
would also have minimized any concern about possible reputational damage to Mr.
Seymour from the broader publication of the allegations made against him in
local newspapers.
[18]
In
this case the deficiencies in the distribution of the notice to off-reserve
members were aggravated by the lack of meaningful content they provided. There
was nothing in the public notices to indicate the purpose of the special
meeting except to say that the meeting was “of great importance to the
community” and was a follow-up to an earlier general meeting of the Band.
While I understand the concern of the Electoral Officer that this vagueness was
a deliberate attempt to protect Mr. Seymour’s reputation outside of the Band,
this purpose could still have been served with the provision of some meaningful
detail. For instance, the notice could have indicated that the purpose of the
meeting was to consider the removal of a member of the Band Council.
[19]
There
is nothing more important in an electoral recall process like this one than the
provision of effective notice to the electorate. All of the attendant rights
of participation by the affected person and by the electors flow from the
provision of sufficient notice. The concern for fairness is all the more
critical in the context of a recall provision like the one used here.
Article 6(a)(iv) contains very low thresholds for both a quorum and for
the recall vote. The provision of a selective or ineffective form of notice to
a meaningful voting constituency could result in a very undemocratic outcome by
undermining the will of the majority from an earlier election. Here the
newspaper notices were profoundly deficient with respect to the purpose of the
meeting and they failed to allow enough time to provide a realistic opportunity
for off-reserve members to attend. These deficiencies clearly constitute a
breach of the duty of fairness owed to Mr. Seymour.
Should the
Court grant the relief requested?
[20]
Although
I have considerable sympathy for Mr. Seymour, this is one of those few cases
where the balancing of interests does not favour the grant of discretionary
relief: see Ominayak v. Lubicon Lake Indian Nation, 2003 FCT 596, [2003]
F.C.J. No. 780 at para. 56 and Jackson v. Piikani Nation, 2008 FC 130,
[2008] F.C.J. No. 162 at paras. 29-36. Even though the process that was
followed here was deficient, I am mindful that Mr. Seymour received only one
vote of support from the 58 votes cast at the meeting of electors. If one-half
of the electors of the Band had attended the meeting presumably he would have
required all of the votes of the additional members to avoid a recall. This is
not determinative but it is a factor to consider. In addition, instead of
seeking an interim injunction in this Court to halt the by-election pending the
outcome of this judicial review application, Mr. Seymour stood for re-election in
the by-election 2 months after his recall and lost to another candidate. He
contends now, of course, that he may have won the election had his reputation
not been harmed by the recall vote; but the fact remains that he was hedging
his bets somewhat by launching this challenge to the recall while at the same
time attempting to regain his seat by political means. What he is now asking
the Court to do is to set aside the results of the by-election in which he
willingly participated and to put him back on Council. While the Court
certainly has that authority, it is important to keep in mind that the electors
made a choice during the by-election and that the candidate they chose has
participated in the work of Council over the last 12 months. The potential
disruption and uncertainty that could result from such an untimely interference
with the past business of the Band cannot be ignored. Although I was invited
by counsel for Mr. Seymour to declare the temporary validity of the intervening
business of Council, I am not convinced that such an approach is as simple as
it may seem particularly where the interests of third parties may be involved. I
would add to this that the next general election will be held later this year
and Mr. Seymour will then have an opportunity to defend his record should he
decide to stand again for election. These are all matters which bear on the
public interest and which weigh against the granting of the relief requested. In
these circumstances, I am not prepared to make a declaration which would
effectively set aside the results of the intervening by-election.
IV. Conclusion
[21]
This
application must be dismissed but having regard to the breach of the duty of
fairness which I have identified, I award costs payable by the Respondents to
the Applicant in the amount of $2,500.00 inclusive of disbursements.
JUDGMENT
THIS COURT ADJUDGES that this application is dismissed with costs payable by the
Respondents to the Applicant in the amount of $2,500.00 inclusive of
disbursements.
.
"R.L.
Barnes"
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