Date: 20111006
Docket: T-667-10
Citation: 2011 FC 1139
Ottawa, Ontario, October 6,
2011
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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HENRY J. FELIX SR.
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Applicant
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and
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THE STURGEON LAKE FIRST NATION, “THE BAND”
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a Preliminary Ruling made by the Sturgeon
Lake First Nation Appeal Tribunal (Appeal Tribunal), on April 12, 2010. The
Appeal Tribunal dismissed a Notice of Appeal filed by the applicant challenging
the outcome of a Band Council election held on March 26, 2010. For the reasons
that follow, the application is allowed.
I. Background
[2]
The
applicant was one of five candidates running for Chief in the Sturgeon Lake
First Nation’s Band Council (the Band) election held on March 26, 2010. After the
initial ballot count, the applicant placed second by a margin of 3 votes; he
received 238 votes and the winner received 241 votes. Due to the close result,
a re-count of the ballots was conducted on March 30, 2010. The re‑count
reduced the margin to only two votes; the applicant received 236 votes and the
winner received 238 votes.
[3]
The
election at issue is governed by the Sturgeon Lake First Nation
Election Act, 2009 [Election Act], adopted in May 2009. This law
is a recently modified codification of the Band’s customary election
practices.
[4]
The
Election Act sets out the procedure for administering elections and any disputes
regarding their outcome. There are three parties responsible for ensuring that
elections are conducted in accordance with the legislation; the Chief Electoral
Officer (CEO), the Deputy Electoral Officer (DEO), and a three person Appeal
Tribunal. These individuals are all appointed at a special meeting held prior
to the election for Chief and Council members and serve the same term as the
Chief and Council members (sections 3.1, 3.3(a) and 11.1 of the Election Act).
The CEO and DEO are responsible for ensuring that elections are held in
conformity with the Election Act and the Appeal Tribunal handles any challenges
made by interested parties to election results or procedure. The Appeal
Tribunal that made the decision at issue was appointed by the Band on
December 3, 2009, and consisted of Larry Daniels, Irene Ermine and
Elaine Naytowhow.
[5]
Sections
11.3 and 11.4 of the Election Act impose the following mandate on the Appeal
Tribunal:
11.3 The Appeal Tribunal shall
supervise and administer all Election and By-Election Appeals in
accordance with this Election Act. The Appeal Tribunal may
be-reconvened to deal with any disciplinary matters that arise during an Elected
Official’s term of office pursuant to the terms of the Sturgeon Lake First Nation Executive Act,
2009.
11.4 It shall
be the duty of the Appeal Tribunal to certify the Election or By-Election
results of the First Nation Council if there is an Appeal after an Election
of By-Election.
[Emphasis in original]
[6]
On
April 7, 2010, the applicant launched an appeal of the election by way of a
Notice of Appeal pursuant to section 12 of the Election Act. He alleged the following
infractions to the Election Act:
1. The CEO and
DEO failed to consider whether candidates were disqualified under paragraph 2.5(e)
of the Election Act on account of owing money to the Band;
2. Contrary to
section 8.10 of the Election Act, the CEO and DEO excluded the applicant’s agents
from attending the advance polling station in Saskatoon on March 24,
2010 to witness the handling of the ballots and the ballot boxes;
3. Contrary to
section 8.9 and section 2.7 of the Election Act, the CEO and DEO failed to
appoint competent, impartial and even-handed “enablers” to help voters who
required assistance with casting their vote; and
4. Contrary to paragraph
3.4(b) of the Election Act, the Band office continued to issue payments to Band
members and to conduct business after nomination day, thereby providing
incumbent councillors with an advantage.
[7]
In
light of the alleged breaches to the Election Act, the applicant requests that
a new election be held.
II. The decision under review
[8]
On
April 12, 2010, the Appeal Tribunal met to assess the applicant’s appeal and
dismissed it.
The Appeal Tribunal outlined its reasons in a document entitled “Preliminary
Hearing” (the decision). The decision states that “[t]he Appeal Board after
thorough review of the documentary evidence and after making appropriate
inquiries of persons directly involved dismissed the appeal on all grounds.” Although
it dismissed the appeal, the Appeal Tribunal made several recommendations aimed
at addressing the applicant’s concerns and at improving the electoral process.
[9]
With
respect to the specific allegations of the applicant, the Appeal Tribunal made
the following findings:
·
In
considering the applicant’s allegation that candidate qualifications had not
been adequately canvassed, the Appeal Tribunal found that the CEO and DEO had
carefully reviewed all Declarations of Intent submitted. It indicated that the
CEO and DEO had contacted the Band’s Finance Officer to ask if any of the
candidates owed money to the Band. However, the Finance Officer had been unable
to fairly make a determination in this regard due to the poor quality of the
Band’s financial records. The Appeal Tribunal recommended that the Finance
Officer keep better records of the money owed to the Board to avoid similar
problems in the future.
- With respect to the
applicant’s allegation that his agents had been excluded from attending at
the advanced polling station in Saskatoon, the Appeal Tribunal indicated
that the Saskatoon polling
station was too small to accommodate voters, election officials, and
agents. It pointed out that agents were present when the ballot boxes were
locked prior to ballots being cast and at the end of the day when the
boxes were sealed. When the polling station was too busy to accommodate
them in the room itself, agents were invited to observe from the hallway.
The Appeal Tribunal recommended that the Election Act be revised to
require polling locations to be large enough to accommodate agents.
- On the issue of
whether or not competent, impartial and even-handed “enablers” had been
appointed, the Appeal Tribunal found that the Elder who had been appointed
to assist voters in this regard understood the responsibility associated
with the task and was competent, impartial, even-handed and respectful of
each voter’s right to have their ballot properly marked. The Appeal
Tribunal recommended that, in the future, where a voter requires physical
assistance marking their ballot, that a tribunal member, family member or
the CEO should observe the proper marking of the ballot.
- Finally, with
respect to the applicant’s allegation regarding the continued use of Band
resources after nomination day, the Appeal Tribunal found that nomination
day was the last day that the incumbent councillors conducted business or
made use of Band resources.
[10]
The
Appeal Tribunal also addressed the applicant’s allegation that the CEO and the DEO
failed to protect the integrity of the election process, the ballots and the
ballot boxes. It concluded that the “CEO and DEO did everything in their power
to protect the integrity of the election process and that they should be
commended for a job well done.”
[11]
The
decision was signed by Irene Ermine and Elaine Naytowhow, two members of the
Appeal Tribunal. The third member of the Appeal Tribunal did not sign the decision.
Instead, the decision bears the signature of a third person named Roy
Kingfisher.
III. Preliminary issue
[12]
The
respondent contends that the Appeal Tribunal is not a “federal board,
commission or other tribunal” for the purposes of the Federal Courts Act,
RSC 1985, c F-7 [FCA] and that therefore the Federal Court has no jurisdiction
to judicially review the Appeal Tribunal’s decision.
[13]
The
respondent argues that the Indian Act, RSC 1985, c. I-5 mandates that First
Nation Chief and Council elections be governed either by the Indian Act or by customary
band law. The respondent further contends that the Band elected its Council members
according to Band custom, and has done so since 1993. The respondent also
asserts that the Election Act codified the Band customary law and reflects the
Band’s intention to preserve its culture and language. Its purpose is to ensure
that governance of the Band remains in harmony with their spirit and tradition.
The respondent further argues that the Election Act was adopted as an exercise
of the Band’s inherent right as a First Nation and that, accordingly, the
Appeal Tribunal derives its power from custom as opposed to an Act of
Parliament. As such, it is not a “federal board, commission or other tribunal”
and cannot be the subject of a judicial review under section 18.1 of the FCA.
[14]
Paragraph
18.1(3)(b) of the FCA allows the Federal Court to quash or set aside a
decision, order, act or proceeding of a “federal board, commission or other
tribunal” – the applicant relies on this provision in the current case. In
order for this Court to have jurisdiction, the applicant must first show that
the impugned decision was made by a “federal board, commission or other
tribunal” as defined in subsection 2(1) of the FCA:
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Definitions
2. (1) In this Act,
…
“federal
board, commission or other tribunal” means any body, person or persons
having, exercising or purporting to exercise jurisdiction or powers conferred
by or under an Act of Parliament or by or under an order made pursuant to a
prerogative of the Crown, other than the Tax Court of Canada or any of its
judges, any such body constituted or established by or under a law of a
province or any such person or persons appointed under or in accordance with
a law of a province or under section 96 of the Constitution Act, 1867;
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Définitions
2.
(1) Les définitions qui suivent s’appliquent à la présente loi.
…
«
office fédéral » Conseil, bureau, commission ou autre organisme, ou personne
ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou
des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu
d’une prérogative royale, à l’exclusion de la Cour canadienne de l’impôt et
ses juges, d’un organisme constitué sous le régime d’une loi provinciale ou
d’une personne ou d’un groupe de personnes nommées aux termes d’une loi
provinciale ou de l’article 96 de la Loi constitutionnelle de 1867.
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[15]
It
is widely accepted that a band council is a "federal board, commission or
other tribunal" for the purposes of subsection 2(1) of the FCA. This Court
in Gabriel v Canatonquin, [1978] 1 FC 124, 9 CNLC 74, as affirmed by the
Federal Court of Appeal in Canatonquin et al. v Gabriel et al., [1980] 2
FC 792, [1981] 4 CNLR 61 (CA), decided that even a band council elected
pursuant to band custom, as opposed to the provisions of the Indian Act, is a
federal board for the purposes of subsection 2(1) of the FCA. The same
principle was reaffirmed by Justice Martineau in Mohawk of Kanesatake v Mohawk
of Kanesatake (Council), 2003 FCT 115, [2003] 4 FC 1133. In Sparvier v
Cowessess Indian Band #73, [1993] 3 FC 142 at para 14, 63 FTR 242, Justice
Marshall Rothstein reasoned that because a band council elected pursuant to
customary aboriginal law is a federal board, an election Appeal Tribunal
elected pursuant to customary aboriginal law is also, logically, a federal
board for the purposes of the FCA.
[16]
Similarly,
in both Parisier v Ocean Man First Nation (1996), 108 FTR 297, 61 ACWS
(3d) 2 (TD) and Okeymow v Samson Cree Nation, 2003 FCT 737, 235 FTR 87,
this Court held that since a band council constitutes a “federal board,
commission or other tribunal”, then an electoral officer or body appointed by
the band council, that purports “to exercise authority over members of an
Indian Band,” also shares this status.
[17]
The
Appeal Tribunal in this case was formally appointed by the Band’s Council on
December 3, 2009, pursuant to section 4.1 of the Band’s Election Act. As such,
based on the rationale set out by this Court in the abovementioned cases, I conclude
that the Appeal Tribunal is a “federal board, commission or other tribunal” for
the purposes of the FCA and that, consequently, this Court has jurisdiction to consider
the current application.
IV. Issues
[18]
The
parties raised several questions but they all boil down to the following two issues:
A. Did the
Appeal Tribunal err in its interpretation or application of the Appeal
procedure set forth in the Election Act and, more specifically, in its
interpretation or application of section 12.3 of the Election Act?
This issue
also raises the sub-question of whether the Appeal Tribunal breached its duty
of procedural fairness by considering evidence beyond the applicant’s
submissions without providing him an opportunity to respond.
B. Did the
Appeal Tribunal render its decision without being properly constituted?
V. Standard
of review
[19]
The
first question relates to the interpretation of the Election Act by the Appeal Tribunal
and, more specifically, to the interpretation of section 12.3 of the Election Act.
Given that the applicant alleges the Appeal Tribunal overstepped its
jurisdiction during the first step of the appeal process by relying on evidence
that was extrinsic to the allegations contained in the appeal and did not give
the applicant opportunity to respond to that evidence, this also raises the
sub-question of procedural fairness.
[20]
When
a specialized administrative body interprets its enabling statute, the standard
of review is usually reasonableness (Dunsmuir v New
Brunswick,
2008 SCC 9 at para 54, [2008] 1 S.C.R. 190). The respondent points to the wording
of section 12.10 of the Election Act which reads:
12.10
The decision
of the Appeal Tribunal shall be final.
[Emphasis in original]
[21]
The
respondent argues that this constitutes a privative clause and that the rest of
the Election Act reveals the Band’s intention to make the Appeal Tribunal’s
decisions final and binding. Therefore, it argues, the Appeal Tribunal’s
decision is owed deference and should be held against the reasonable standard
of review. I disagree.
[22]
A
standard of review analysis in this case leads me to conclude that the Appeal
Tribunal’s decision must be reviewed under the correctness standard despite
section 12.10 of the Election Act. First, I am of the view that this issue raises
a question of law: Does section 12.3 of the Election Act allow the Appeal
Tribunal, when assessing an appeal at the first stage, to rely on extrinsic
evidence and/or personal knowledge? This issue involves the interpretation of procedural
provisions from the Election Act and not a factual finding. Second, the evidence
does not establish that the Appeal Tribunal members have any expertise in the
interpretation of procedural formalities from the Election Act. Although one
member of the Appeal Tribunal previously sat on an Appeal Tribunal, the
tribunal is composed of members appointed for a time-limited mandate. They have
no special expertise and it is noteworthy that counsel for the respondent was
present during the deliberation of the Appeal Tribunal to assist the members. For
these reasons, I conclude that the Appeal Tribunal’s decision must be held up
to the correctness standard. In Pelican Lake Band v Thomas, 2007 FC
1152, 319 FTR 182, Justice Noël also held that the issue “of the proper
exercise of jurisdiction by the Appeal Board” attracted a correctness review.”
[23]
This
conclusion is reinforced by the intertwined question of procedural fairness at
issue. It is well established that questions related to procedural fairness are
to be reviewed under the correctness standard (Dunsmuir at para 50; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR
339; Sketchley v Canada (Attorney General), 2005 FCA
404 at para 53, [2006] 3 FCR 392).
VI. Analysis
A. Did the Appeal Tribunal err in its
interpretation or application of the Appeal procedure set forth in the Election
Act, and more specifically in its interpretation or application of section 12.3
of the Election Act? Did the Appeal Tribunal breach its duty of procedural
fairness by considering evidence beyond the applicant’s submissions without
providing him an opportunity to respond?
[24]
As
previously discussed, the Band’s Council elections are governed by the Band’s
Election Act. It will be helpful at this point to refer once more to section 11.3
of the Election Act which sets out the Appeal Tribunal’s mandate:
11.3 The Appeal Tribunal shall
supervise and administer all Election and By-Election Appeals in
accordance with this Election Act. The Appeal Tribunal may
be-reconvened to deal with any disciplinary matters that arise during an Elected
Official’s term of office pursuant to the terms of the Sturgeon Lake First Nation Executive Act,
2009.
[Emphasis in original]
[25]
The
Election Act also sets out the procedure for lodging an appeal
challenging an election outcome. The Appeal Tribunal must follow a two-step
process. According to section 12.3, the Appeal Tribunal must first decide
whether to allow an appeal hearing based on the sufficiency of the
evidence presented in the complaint:
12.3 The Appeal Tribunal shall,
within seven (7) days of receiving the complaint, rule on whether to allow or
disallow an Appeal Hearing based on the sufficiency of the evidence presented
in the complaint.
[Emphasis in original]
This initial decision is referred to as a
“Preliminary Ruling”.
[26]
If
the Preliminary Ruling allows the complaint to proceed, sections 12.5 to 12.8 of
the Election Act outline the second step. In particular, section 12.6
indicates that, in the event of a positive Preliminary Ruling, the appellant
shall present his or her case, the respondents are entitled to make full answer
and defence, and the appellant will have an opportunity to make submissions by
way of rebuttal:
12.6 At the Appeal
Hearing, the Appellant(s) shall present his, her or their case.
All proper Respondents are entitled to make full answer and defence. The
Appellant(s) shall then have an opportunity for rebuttal. Any of
the parties [Appellants, Respondents] may be represented by legal or other
counsel each at their own expense. The Appeal Tribunal may have legal counsel
whose professional fees shall be paid by the Band.
[Emphasis in original]
[27]
This
process ensures that all parties involved have an opportunity to present
evidence, to counter evidence adduced by the other parties and to present
submissions before a final decision is made.
[28]
The
applicant contends that the Appeal Tribunal contravened the appeal procedure established
by the Election Act when it considered evidence beyond what he presented in his
complaint.
[29]
The
respondent admits that it considered elements that were extrinsic to the
allegations contained in the appeal. The Appeal Tribunal stated in its decision
that it dismissed the appeal “after thorough review of the documentary evidence
and after making appropriate inquiries of persons directly involved”. In its
submissions, the respondent argued that the Appeal Tribunal’s inquiry was
limited to the empirical knowledge of the Appeal Tribunal members. On that
matter, the respondent states the following at paragraph 28 of its Memorandum
of Fact and Law:
28. The Appeal Tribunal met and carefully
considered each of the allegations made by the two Appellants with reference to
the empirical evidence they had by virtue of having been in attendance to all
of the Polls from their opening to their closing and for the Count and re-count
of the ballots.
However, when reading the Appeal Tribunal’s
decision, it is clear that the tribunal relied both on the personal knowledge
of the Appeal Tribunal members and on information that they obtained from third
parties.
[30]
The
respondent takes the position that it was reasonable for the Appeal Tribunal
members to rely on their personal knowledge in reaching their conclusion. To
that effect, the respondent stated the following at paragraph 63 of its
Memorandum of Fact and Law:
63 (…) There is no evidence to suggest
that they acted unreasonably in the circumstances. They carefully set out their
findings and recommendations in their Preliminary Ruling and having considered
the materials before them and their empirical knowledge of the allegations made
and the events described to them, they determined that there was no factual
foundation for proceeding.
[31]
The
respondent contends further that the Appeal Tribunal is vested with a
discretionary power granted by the membership when the Election Act was adopted
and that it exercised this discretion within the boundaries of the Election Act.
The respondent further argues that there is no evidence that the Appeal
Tribunal members acted in bad faith, acted for improper purpose or motive,
considered irrelevant factors or failed to consider relevant factors.
[32]
The
respondent also highlights that some issues raised by the appeal concern
matters that could not be corrected if a by-election was to be called, while others
had no impact on the outcome of the election (para 65 of the respondent’s
Memorandum). These considerations were not mentioned in the Appeal Tribunal’s
decision and were only advanced in the respondents Memorandum and oral
arguments at the hearing. These elements may well have been factors that the
Appeal Tribunal considered, but they were not accounted for in the decision. In
the context of Judicial Review, a tribunal’s decision cannot be complemented by
considerations offered ex post facto. Accordingly, since the Court does
not know if the Appeal Tribunal considered those elements, the respondent’s argument
regarding the impact of the issues on the election result will be disregarded.
[33]
With
respect to the applicant’s allegation that the Appeal Tribunal failed to
observe the principles of natural justice and procedural fairness, the
respondent contends that the appellant had an opportunity to seek legal advice
before filing his Notice of Appeal and discuss the sufficiency of any
supporting documents with a lawyer (para 73 of the respondent’s Memorandum).
[34]
Although
counsel for the respondent insisted on several occasions on the good faith of
the Appeal Tribunal members, this element is not at issue. The applicant did
not argue that the Appeal Tribunal members acted in bad faith and the evidence
does not show any bad faith on the part of any of the electoral officers or the
Appeal Tribunal members. The issue is whether the Appeal Tribunal followed the
procedure provided in the Election Act. With respect, I am of the view that it
did not.
[35]
The
Appeal process is a two-stage process. During the first stage, the Appeal
Tribunal’s mandate is limited to determining whether the appeal is supported by
sufficient evidence to warrant a full hearing. Section 12.3 of the Election Act
clearly expresses the criteria upon which the Appeal Tribunal must base its initial
decision: the tribunal shall rule whether to allow an Appeal Hearing based on
the sufficiency of the evidence presented in the complaint. It is
important to keep in mind that the first step of the appeal process is not adversarial.
The Appeal Tribunal must make its decision based only on the allegations contained
in the complaint. Indeed, Section 12.3 specifically references evidence
presented in the complaint and not evidence gathered by the Appeal Tribunal.
[36]
Justice
Danièle Tremblay-Lamer considered an almost identical set of facts and law in Abbott
v Pelican Lake First Nation, 2003 FCT 340, 231 FTR 69 [Abbott]. At
paragraph 21, Justice Tremblay-Lamer described the appeal procedure as being a
two-step process, with the first step being focussed solely on the contents of
the complaint:
…The appeal… is a two-step process. At
the initial stage, the Board is to review the complaint and determine within
seven days "whether to allow or disallow an Appeal Hearing based on the
sufficiency of the evidence presented in the complaint ...". This decision
is based on the complaint alone…
[37]
Justice
O’Keefe also commented on an appeal tribunal’s mandate at the first stage of
the appeal process in Bill v Pelican Lake Indian Band, 2006 FC 679, 294
FTR 189 [Bill] affirmed in Bill v Pelican Lake Indian Band, 2006
FCA 397, 154 ACWS (3d) 259. He stated the following:
47. To summarize, an appeal
proceeding under the Act is a two-step process. First, after receiving a
complaint, the Appeal Board determines whether it should allow or disallow an
appeal hearing based on the sufficiency of the evidence. Second, if it decides
to proceed with the appeal hearing, then all concerned parties must be given
notice of the date of the appeal hearing and the hearing must be held within 14
days of receiving the complaint. The appellants must present their arguments at
the appeal hearing and the respondents are entitled to respond.
[38]
I
agree with the principles outlined by my colleagues.
[39]
I
conclude that the Appeal Tribunal did not respect the procedure and the
parameters set forth in section 12.3 of the Election Act. In assessing
whether there was sufficient evidence to move to the second stage of the appeal
process, the Appeal Tribunal went beyond the evidence referenced in the Notice
of Appeal and the applicant’s Affidavit of Particulars. The Appeal Tribunal
members should have limited their analysis to the evidence referenced in those
documents. The legislation does not permit them at that stage, to rely on personal
knowledge or evidence gathered from third parties.
[40]
I
also consider that by not respecting the limits set out in section 12.3 of the
Election Act, the Appeal Tribunal acted improperly and breached its duty to act
fairly. If the Appeal Tribunal wished to look beyond the applicant’s submissions,
it should have given the applicant an opportunity to hear and rebut the
opposing evidence in the context of a hearing pursuant to section 12.6 of the
Election Act.
[41]
The
circumstances in Lavallee v Louison, 91 ACWS (3d) 337, [1999] FCJ no
1350 (QL) [Lavallee] were very similar to the case at issue. The appeal tribunal
members relied on their own personal knowledge in deciding the appeal without
offering the applicant an opportunity to respond to contradictory evidence.
Justice Sharlow determined that the Appeal Tribunal had not acted in fairness.
She stated the following:
63. I do not suggest that the Tribunal
members should have been forbidden from attending the election and the count.
But having done so, it was unfair for them to then rely on their own personal
knowledge when determining that Mr. Lavallee's appeals had no merit, without
first giving him fair notice of the factual evidence that contradicted his
allegations. He should have been allowed to respond to that contradictory
evidence before the Tribunal decided whether any or all of his three ppeals [sic]
warranted a hearing.
64. I would go further and say that
even if the contradictory evidence had come from someone other than the
Tribunal members, such as a neutral observer like Mr. Louison as Chief
Electoral Officer, Mr. Lavallee in fairness should have been told about that
evidence, and should have been given an opportunity to respond to it before the
Tribunal determined whether an appeal hearing was warranted.
[42]
Justice
Tremblay-Lamer also dealt with a similar situation in Abbott where the
CEO and the DRO were present at the initial meeting of the Appeal Tribunal and
made representations. Justice Tremblay-Lamer determined that the Appeal
Tribunal contravened the procedure set forth in their Election Act and breached
their duty of procedural fairness by allowing the CEO and the DRO to
participate in the meeting. She expressed the following:
24. … At issue here is not the
substance of the decision itself, but rather, the manner in which it was
reached. In this regard, contrary to the respondent's submission, the fact that
the Act has a privative clause is not relevant to the question at issue of
whether the Board acted fairly.
25. In my opinion, it was improper
for the CEO and the DRO to have been present and to have made representations
at the initial meeting of the Board. The presence of the CEO and the DRO cannot
be characterized as neutral….
26. Furthermore, Mr Turner provided
each member of the Board with a document entitles “Response to the Notice of
Appeal to the General Election held on February 28th, 2001”. This
document set forth Mr Turner’s opinion that the appeal was without merit and
should have been dismissed summarily in the absence of a formal hearing. This
type of information should only have been provided at the formal hearing, where
the applicants would have had an opportunity to present their case and an equal
opportunity to respond.
[43]
After
citing Justice Sharlow in Lavallee, Justice Tremblay-Lamer similarly
concluded that “it was improper for the Board to hear the opinion of Mr. Turner
without giving the applicants an opportunity to respond” (para 28).
[44]
In
Bill, Justice O’Keefe dealt with a reverse situation. The Appeal
Tribunal in that case allowed the appeal because all parties did not receive
appropriate notice of the summary hearing. He concluded that the Appeal
Tribunal contravened the procedure prescribed in the Act and breached the
principles of procedural fairness. He stated the following:
50. Thus, by rendering the decision
it did on March 15, 2004, the Appeal Board failed to follow the procedure
required by the Act.
51. Further, the Appeal Board conducted the
appeal proceeding in a way that raises procedural fairness concerns.…
52. Because the Appeal Board did not
properly follow the appeals procedure stipulated in the Act and did not
give the applicants adequate notice of the appeal hearing (and hence, the
applicants did not have an opportunity to respond to the allegations raised
against them), the decisions of the Appeal Board in respect of the March 5
election should be set aside.
[45]
These
findings equally apply to this case.
[46]
At
the hearing, counsel for the applicant raised other concerns about the role
that the Appeal Tribunal members played in the electoral process. Notably, he raised
the fact that the Appeal Tribunal members were present at the polls and
witnessed facts that they later adjudicated. The Court has similar concerns.
[47]
In
its submission, the respondent admitted that the Appeal Tribunal members were
involved in different stages of the electoral process. For example, evidence
shows that the Appeal Tribunal members participated in the decision regarding
the location of the advance poll in Saskatoon. The evidence also showed
that the Appeal Tribunal members were present when voters were assisted by
Elder/Interpreter Margaret Ermine. Both the matter of locating the advance poll
in Saskatoon and the
matter of Elder Margaret Ermine’s assistance were at issue in the appeal. The
Appeal Tribunal members placed themselves in a very delicate situation. One
cannot act as judge, witness and party. The Appeal Tribunal’s members must keep
a safe distance from the electoral process in order to remain neutral and maintain
the appearance of neutrality expected from them.
[48]
In
summary, I conclude that the Appeal Tribunal exceeded its jurisdiction in assessing
whether there was sufficient evidence to warrant an appeal hearing. Further, by
relying on evidence extrinsic to the complaint and denying the applicant an
opportunity to respond to contradictory evidence, the Appeal Tribunal breached its
duty of procedural fairness.
[49]
I
am also of the view that the involvement of the Appeal Tribunal members in the
electoral process should be reviewed to ensure that they do not participate in
making decisions that can later be disputed in the context of an appeal.
B. Did the Appeal Tribunal render its
decision without being properly constituted?
[50]
The
applicant also takes issue with the fact that the decision under review was
signed by Irene Ermine, Elaine Naytowhow and Roy Kingfisher, whereas the
Band members appointed to the Appeal Tribunal on December 3, 2009 were Irene
Ermine, Elaine Naytowhow and Larry Daniels. He argues that therefore the
Appeal Tribunal was not properly constituted when it denied his appeal.
[51]
The
affidavit submitted by Elaine Naytowhow and Irene Ermine indicate that Larry
Daniels was present when the Appeal Tribunal considered the appeal and that Roy
Kingfisher signed as a witness, not as a member of the tribunal. Their evidence
indicates that Mr. Daniels agreed to each of the statements set out in the
Tribunal’s decision. It was only at the end of the process that he refused to
sign the decision. He would not provide a reason for his refusal.
[52]
Giving
the respondent the benefit of the doubt, the best that can be said is that the
Appeal Tribunal considered the appeal together and that Mr. Daniels, at the
last minute, decided not to approve the decision. There is no indication in the
Election Act that the decision of the Appeal Tribunal must be unanimous.
However, as noted by Justice Tremblay-Lamer in Abbott, above at paragraph
21, an objection by a member of the tribunal is “a strong indication that there
is enough evidence to go to a formal hearing and that a summary dismissal is
inappropriate in the circumstance.”
[53]
While
I do not consider that the Appeal Tribunal was improperly constituted, I do
find that the refusal by one of the three members of the Appeal Tribunal to
endorse the Preliminary Ruling dismissing the applicant’s appeal is a strong
indication that there was sufficient evidence to warrant a formal hearing under
sections 12.5 to 12.8 of the Election Act.
[54]
For
the foregoing reasons, this application for judicial review is allowed.
VII. Remedies sought
[55]
The
applicant asks the Court to set aside the decision rendered by the Appeal
Tribunal and to order a new election. He relies on Rules 3 and 4 of the Federal
Courts Rules, SOR/98-106 (the Rules). In the alternative, the applicant asks
the Court to refer the appeal back to a newly constituted Appeal Tribunal. As a
last resort, the applicant asks the Court to return the appeal to the existent Appeal
Tribunal for determination in accordance with the Election Act and issue
directions to the Appeal Tribunal.
[56]
The
Court does not have jurisdiction to set aside the election results and order a
new election. Rules 3 and 4 of the Rules do not allow the Court to go as far as
creating a substantive relief that is not provided for in the Election Act. Rule
3 is an interpretation rule and Rule 4, often called the “Gap Rule”, is
procedural in nature and does not allow the Court to invent relief not contemplated
in the applicable legislation. The responsibility of deciding whether the
election results should be set aside and if a new election is warranted rests
with the Appeal Tribunal and the Court must not usurp that role.
[57]
Moreover,
even though I consider that justice would be better served if the matter was
remitted to a newly constituted Appeal Tribunal, I am of the view that the
Court does not have jurisdiction to refer the matter to a differently
constituted Appeal Tribunal as there are no provisions in the Election Act to
constitute another Appeal Board apart from the situation where the current
members indicate that they are unable or unwilling to serve for the full term
of their appointment (section 3.3 of the Election Act). Justice O’Keefe reached
the same conclusion in Bill (para 59). I would strongly suggest, though,
that the Band consider amending the Election Act to allow the Court to constitute
a new Appeal Tribunal when such a remedy would protect the interest of the
parties involved and promote the sound administration of justice and the
electoral process.
[58]
The
matter will be remitted to the Appeal Tribunal. However, I do not find, in the
circumstances of this case, that it would be reasonable to ask the Appeal
Tribunal to re-assess, at the preliminary stage, the Appeal filed by the applicant.
Therefore, I am of the view that the process should be restarted at the stage
of an appeal hearing and should be conducted in accordance with the Election Act
and in fairness to all parties involved.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1. The application for judicial
review is allowed;
2. The
Appeal Tribunal’s decision dated April 12, 2010 dismissing the appeal filed by
the applicant is set aside;
3. The appeal is remitted to the Appeal
Tribunal;
4. The
Appeal Tribunal is to convene an appeal hearing pursuant to section 12.3 of the
Election Act within 30 days of the date of this Judgment;
5.
The appeal hearing is to be governed in accordance with sections 12.5
to 12.8 of the Election Act;
6. No
costs are awarded given that the Band has accepted to pay the legal fees of the
applicant’s counsel.
“Marie-Josée
Bédard”
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