Date: 20111124
Docket: T-864-11
Citation: 2011 FC 1353
Ottawa, Ontario, November 24,
2011
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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HAROLD RALPH LINKLATER
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Applicant
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and
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PETER BALLANTYNE CREE NATION ELECTION
APPEAL COMMITTEE (CHRISTINE CUSTER,
MARGARET
BALLANTYNE,
FREDERICK
BALLANTYNE, IDA SWAN,
BERNADETTE
BALLANTYNE, RENE JOBB AND BEATRICE GAMACHE),
PETER BALLANTYNE CREE NATION AND TED
MERASTY
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of a decision made by the Peter Ballantyne Cree
Nation Election Appeal Committee (the Appeal Committee), dated May 6, 2011,
wherein it dismissed a Notice of Appeal filed by the applicant in relation to a
Band election held on April 14, 2011, for Chief and Council.
[2]
Ted
Merasty, the Head Electoral Officer (HEO) for the Band Election, and the Peter Ballantyne
Cree Nation (the Cree Nation) each filed a respondent’s record and provided
oral submissions at the hearing. The Appeal Committee chose not to file a
respondent’s record but filed an affidavit from Ida Swan, a member of the
Appeal Committee. Counsel for the Appeal Committee participated in the hearing
and made brief comments.
[3]
For the
reasons that follow, the applicant’s application for judicial review is
allowed.
I. Background and decision under review
[4]
The
applicant was one of five candidates for the position of Chief of the Cree
Nation in a Band Council election held on April 14, 2011. He lost by nine votes.
[5]
On April
15, 2011, the applicant requested a ballot recount. On April 20, 2011, the HEO
issued a letter to the members of the Band explaining that, after seeking legal
advice, he had determined that there was no provision in the Peter
Ballantyne Cree Nation Band Custom Election Act and Procedures, 1994 [the
Election Act] that provided for a recount of the ballots for Chief. Rather,
the right to a recount was limited to candidates for Councillor pursuant to
paragraph 10.19(b) of the Election Act.
[6]
The
Election Act sets out the procedure for administering elections and disputes
regarding the election process. In particular, section 11 of the Election Act
provides for an election appeal process. On April 26, 2011, the applicant launched
an appeal of the election by way of a Notice of Appeal pursuant to paragraph 11.4(a)
of the Election Act.
[7]
The Notice
of Appeal alleged that the following practices occurred and violated the
Election Act within the meaning of paragraph 11.5(a) of the Election Act:
. . .
a)
The
Electoral Officer, Ted Meresty [sic], was ineligible to act as the
Electoral Officer by reason of being an immediate family member (brother) of
Angela Merasty who was the successful Councilor [sic] candidate for Pelican Narrows within the meaning of s. 7.2;
b)
The
Electoral Officer, Ted Meresty, [sic] was not sworn in by a Council of
Elders as required by s. 7.3;
c)
The
Electoral Officer and Deputy Electoral Officers did not provide separate ballot
paper for the position of Chief and those for Councillors as required by s.
7.4(i);
d)
The
Electoral Officer and Deputy Electoral Officer did not provide different
coloured ballots for the position of Chief and those for Councillors as
required by s. 7.4(j);
e)
The
Electoral Officer and Deputy Electoral Officers did not personally count all of
the ballots but rather used an electronic counter contrary to by s. 7.4(m); and
f)
The
Electoral Officer refused to recount the votes cast for Chief, notwithstanding
than [sic] less than ten voted [sic] separated the Appellant from
the Chief Elect contrary to s. 10.19(b).
. . .
[8]
In
addition, the applicant alleged that illegal activity occurred which could
discredit the integrity of the Cree Nation government within the meaning of paragraph
11.5(b) of the Election Act. In particular, the applicant alleged that the elected
Chief, Darrell McCallum, engaged in corrupt election practices by offering
bribes to electors in order to attract their vote. In support of this
allegation, the applicant submitted affidavits from Jade Beatty and Arnold
Dorion, two members of the Cree Nation, who both stated that the elected Chief
had offered them money in exchange of their votes.
[9]
The Appeal
Committee met on May 5, 2011 to discuss the applicant’s Notice of Appeal and to
decide whether a full appeal hearing would be held. The Committee decided against
holding an appeal hearing. On May 6, 2011, the Appeal Committee posted written
confirmation that there would not be an appeal hearing held in respect of the
April 14, 2011 election. The Appeal Committee’s decision was signed by six out
of the seven Appeal Committee members. The only individual who did not sign the
decision was Bernadette Ballantyne, the applicant’s sister.
II. Issues
[10]
This
application for judicial review raises the following issues:
a) Did the Appeal Committee err in its decision not to hold
an appeal hearing?
b) Did the Appeal Committee fail to observe a principle of
natural justice and/or procedural fairness by denying the applicant an
opportunity to make representations and by creating a reasonable apprehension
of bias?
III. Standard of review
[11]
The first
issue involves the interpretation of the Election Act and the application of
its provisions to the facts of this case. Therefore, it does not raise a pure question
of law but rather a question of mixed fact and law which should be reviewed according
to the reasonableness standard.
[12]
The
Court’s role when reviewing a decision against the reasonableness standard is
explained in Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR
190:
. . . A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
[13]
The second
issue involves questions of procedural fairness which will attract the
correctness standard of review.
IV. Analysis
A. Did the Appeal Committee err in its decision not to
hold an appeal hearing?
[14]
The appeal
process is governed by section 11 of the Election Act. Subsections 11.1 and 11.3
provide that an Appeal Committee, composed of one elder from each community, is
appointed at a nomination meeting for the term between elections.
[15]
The appeal
process is set forth in subsections 11.4 to 11.9 of the Election Act which read
as follows:
11. APPEALS
. . .
4. The following procedures govern an
appeal of the election results:
(a)
Any
candidates may appeal the results of the election within fifteen (15) days from
the day of the election in writing.
5. Grounds for an appeal are restricted
to:
(b)
Election
practices which violate the Act.
(c)
Illegal
activity related to the Election, which might discredit the integrity of the
Indian Government of the Peter Ballantyne Cree Nation.
6. The appeal committee will rule on
whether to allow or disallow an appeal hearing.
7. If it is judged that there is
sufficient evidence to warrant an appeal, the appeal committee may order a
hearing within ten (10) days after receiving a written appeal.
8. An appeal hearing will take the form
of a formal meeting consisting of the Appeal committee. The appeal committee
may:
(a)
Uphold the
election.
(b)
Order a
new election within thirty (30) days of the upholding of an appeal decision.
9. The decision of this Appeal committee
is final.
[16]
The Appeal
Committee’s decision is quite laconic. It reads as follows:
We, the members of the appeal committee
have met on Thursday, May 5 and reviewed all the eligible appeals filed in
connection with the 2011 PBCN Election. There is not sufficient evidence to
warrant an appeal. We will not be proceeding with any appeal hearing.
[1] The applicant
contends that it is implicit from the Election Act that, at the first stage of the
appeal process, the Appeal Committee is supposed to review the allegations and evidence
submitted by the appellant and determine whether there is sufficient evidence to
warrant the holding of an appeal hearing. The applicant argues that in light of
the evidence he submitted – the affidavits from independent members of the Cree
Nation – and the infractions to the Election Act that he identified in his Notice
of Appeal, the Appeal Committee should have ordered a full hearing. The
applicant contends that in refusing to order an appeal hearing, the Appeal
Committee ignored the allegations and the evidence that he submitted. In doing
so, the Appeal Committee refused to exercise its jurisdiction and acted
unreasonably.
[2] The Cree
Nation admits that there were technical breaches to the Election Act but contends
that they were due to financial difficulties of the Cree Nation and a lack of
resources. However, the Cree Nation argues that there were reasonable grounds
on which to refuse to hold a full hearing since none of the alleged breaches to
the Election Act had a material effect on the outcome of the election. In
addition, the complaint relating to the recount of the ballots for Chief was
outside of the jurisdiction of the HEO.
[3] The Cree
Nation further argues that the Appeal Committee was within its right and
discretion to refuse to hold a hearing and that the Appeal Committee’s decision
was almost unanimous. The HEO concurs with the Cree Nation.
[4] I consider
that the Appeal Committee’s decision is unreasonable for the following reasons.
[5] Although the
appeal process provided in the Election Act is somewhat succinct, it clearly
involves a two-step process. It appears from subsections 11.6 and 11.7 that, at
the preliminary stage of the process, the Appeal Committee’s mandate is to
determine whether there is sufficient evidence to warrant an appeal. In order
to make this decision, the Appeal Committee must assess the allegations
contained in the Notice of Appeal and the evidence submitted by the appellant.
Usually, at this preliminary stage, the Appeal Committee does not make a full
enquiry but analyses the allegations on their face. In this case, the evidence
shows that the Appeal Committee did not have any evidence before it other than
the evidence provided by the applicant. If, in light of the Notice of Appeal,
the Appeal Committee concludes that there is sufficient evidence, it must then proceed
to hold an appeal hearing.
[6] As mentioned
above, the Appeal Committee’s decision is very laconic. It simply states that
“there is not sufficient evidence to warrant an appeal.”
[7] This decision
cannot stand for two reasons.
[8] First, it
lacks any justification. The Appeal Committee did not indicate why it
considered that there was insufficient evidence to warrant an appeal. One is
left without knowing whether the Appeal Committee considered the applicant’s
allegations and evidence. This failure to explain why and how the Appeal
Committee reached its decision can be seen from a procedural fairness
perspective or from a substantive point of view: the Appeal Committee failed to
provide adequate reasons and its decision lacks justification, transparency and
intelligibility. In Jakutavicius v Canada (Attorney
General),
2011 FC 311, at para 31 (available on CanLII), Justice Zinn discussed in a very
appropriate way the two facets of insufficient reasons:
The reasons provided for a decision may
fulfill the requirements of procedural fairness in the sense that the reasons
meet the goals of focusing the decision maker on the relevant factors and
evidence, providing parties with the assurance that their representations have
been considered, allowing parties to effectuate any right of appeal or judicial
review they might have and allowing reviewing bodies to determine whether the
decision maker erred, and providing guidance to others who are subject to the
decision maker's jurisdiction: VIA Rail Canada v National Transportation
Agency, [2001] 2 F.C. 25 (CA), at paras. 17-21. Yet the same reasons which
meet procedural muster may render the decision unreasonable as a matter of
substantive review. It is in this context that one examines, based on the
reasons provided, the justification, transparency and intelligibility of the
decision. Justification requires a decision maker to focus on relevant factors
and evidence. Transparency requires a decision maker to clearly state the basis
for the decision reached. Intelligibility requires a decision maker to reach a
result that clearly follows from the reasons provided.
[9] These
principles apply to this case.
[10]
In
its memorandum of fact and law, the Cree Nation supported the Appeal
Committee’s decision by indicating that the alleged breaches did not have a
material effect on the election outcome. With respect, the Cree Nation cannot
supplement ex post facto the Appeal Committee’s decision. Moreover, the
Cree Nation cannot provide reasons on behalf of the Appeal Committee.
[11]
I
also consider that the outcome reached by the Appeal Committee is unreasonable
in light of the allegations and the evidence provided by the applicant. The
applicant’s allegations related to the two grounds set out in the Election Act on
which an election may be appealed: violations of the Election Act and illegal
activities that may discredit the integrity of the election process which, in
turn, could discredit the entire Cree Nation. The allegations made by the
applicant were serious and some of them could very well have an effect on the
outcome of the election; the evidence submitted called for a thorough analysis.
I am of the view that the outcome reached by the Appeal Committee was not one
that is defensible in respect of the facts and the role of the Appeal Committee
at the preliminary stage of an appeal process. Therefore, it was unreasonable
for the Appeal Committee to conclude that there was insufficient evidence to
allow an appeal. By deciding not to hold a full hearing, the Appeal Committee
ignored relevant evidence and failed to exercise its jurisdiction. Accordingly,
its decision cannot stand. The Appeal Committee should have ordered the conduct
of a hearing and the Court will order that such a hearing be held.
[12]
I
wish to add that, although the Election Act is laconic and somewhat unclear with
respect to the manner in which an appeal hearing is to be conducted, it is
essential, in order to be fair, that it be conducted in a manner that will permit
the applicant and all other parties involved to submit evidence and to make
full submissions to the Appeal Committee before it reaches its decision.
[13]
Considering
my conclusion on this first issue, it is not necessary that I deal with the
issue of procedural fairness. However, I wish to comment on the allegations
that the HEO overstepped his role in the appeal process. The Election Act is
silent as to the administrative support that is to be given to the Appeal
Committee. There is no evidence that the HEO acted in bad faith or for any reason
other than helping the Appeal Committee by offering it logistical and
administrative support. The applicant contends that the HEO participated in the
Appeal Committee’s deliberations and/or influenced the Appeal Committee’s
decision. These allegations are not supported by the evidence. In his
affidavit, the HEO states that he refrained from making any comments that could
be construed as submissions in his favour and that he was not present when the
Appeal Committee deliberated.
[14]
The
applicant requested costs on a solicitor-client basis but I do not see any
justification for such an order in this case. It appears clearly from the parties’
submissions that there was no bad faith or abuse on the part of the Appeal
Committee members, the HEO or the Cree Nation’s representatives.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is allowed.
2.
The
Appeal Committee’s decision is set aside.
3.
The
appeal is remitted back to the Appeal Tribunal.
4.
The
Appeal Committee must convene an appeal hearing pursuant to subsection 11.7 of
the Election Act within 10 days following reception of this judgment.
5.
Costs
are ordered in favour of the applicant.
“Marie-Josée
Bédard”
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