Date: 20070308
Docket: T-1774-06
Citation: 2007 FC 271
Ottawa, Ontario, March 8,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
SWEETGRASS FIRST
NATION
Applicant
and
VIRGINIA FAVEL and
MYRON PASKEMIN, in their own capacities
and as purporting
to act as the Election Tribunal of Sweetgrass First Nation
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
Background
[1]
By
this application for judicial review, Sweetgrass First Nation (Sweetgrass)
seeks a declaration with respect to the composition of an Election Tribunal
(Tribunal) appointed under the Sweetgrass Band Election Act (Act) to
investigate the propriety of a Band election conducted on November 13, 2005.
This is the second application brought by Sweetgrass in support of Band Council
Resolutions (BCR) purporting to alter the membership of the Tribunal. The
first application was brought before me at a hearing in Saskatoon on May 15,
2006 seeking a declaration that two of the three members of the Tribunal were
disqualified from acting and had been lawfully replaced by the Band Council.
On that occasion Sweetgrass sought to remove the Tribunal Chair, Lori Gollan,
and Member, Myron Paskemin, on the basis of alleged appointment irregularities
and, with respect to Ms. Gollan, for bias. In my decision rendered on June 20,
2006, I did grant the requested relief with respect to Ms. Gollan and I
directed that the Band Council appoint her successor within 30 days: see Sweetgrass
First Nation v. Gollan, Favel and Paskemin, [2006] F.C.J. No. 969, 2006 FC
778. In the case of Mr. Paskemin, I held that Sweetgrass had not established
any basis for his removal from the Tribunal. The following passages from my
earlier decision provide the rationale for dismissing the application by
Sweetgrass with respect to Mr. Paskemin:
[31] Sweetgrass has challenged the
right of Mr. Paskemin to sit as a member of the Tribunal based upon a further
technical argument. Sweetgrass does not say that he is disqualified from acting
on the ground of bias. Sweetgrass contends that Mr. Paskemin's appointment was
irregular and not in conformity with the Act and that the earlier appointment
of Ms. Weenie should be restored. Some concern has also now been expressed
about Mr. Paskemin's ability to dispassionately sit in judgment of the election
in the face of this challenge to his membership on the Tribunal. Sweetgrass
argues that there is benefit in having an effective sweep of the Tribunal with
replacements who can be seen to be objective and impartial.
…
[34] The attempt by the current
Council to unseat Mr. Paskemin on technical grounds and to replace him with a
person with such obvious family ties to the current Chief detracts from its
argument that it is truly committed to a transparent and impartial appeal
process.
…
[36] Finally, I also do not accept
that this challenge to Mr. Paskemin's right to continue as a member of the
Tribunal is a basis for concern that he could not fairly carry out his
responsibilities. Such an argument would disqualify any member of a tribunal
simply because his right to sit was legally challenged. There can be no such
basis for removing a member of an adjudicative body absent evidence of
disqualifying bias. Here there was no evidence offered that Mr. Paskemin was
biased, and there is no basis whatsoever for removing him from the Tribunal.
[37] In the result, I do not accept
the argument by Sweetgrass that Mr. Paskemin […] should be removed on the basis
of alleged appointment irregularities.
[2]
In
accordance with my decision, the Band Council did replace Ms. Gollan as
Tribunal Chair with Mr. Robert Pelton, Q.C. by resolution dated July 4, 2006.
Regretably, it would appear that Mr. Pelton was not advised of his appointment
until August 1, 2006. To further complicate matters, on July 31, 2006 the Band
Council purported to replace Mr. Paskemin on the Tribunal with Gordon Albert.
The BCR supporting the removal of Mr. Paskemin stated that he was in a conflict
of interest “having family members currently sitting on Sweetgrass First Nation
Band Council namely Elsie Whitecalf and Archie Weenie, and Myron Paskemin has a
family member namely Quinton Weenie who stood for election on November 13,
2005”.
[3]
The
Record indicates that, notwithstanding the July 31, 2006 Band Council decision,
Mr. Paskemin and the second member of the Tribunal (Virginia Favel) were
strongly disposed to proceed with the investigation of the 2005 Band election.
However, Mr. Pelton was not prepared to act as Chair until the issue of Mr.
Paskemin’s membership on the Tribunal was resolved. By agreement reached in
late August, 2006, the parties resolved to put the issue of Mr. Paskemin’s
status on the Tribunal back before the Court on an expedited basis. The within
application was filed with the Court on October 4, 2006 and the matter was scheduled
for argument in Saskatoon on February 22, 2007.
[4]
In
the application materials filed by Sweetgrass the factual basis for the Band
Council decision purporting to remove Mr. Paskemin from the Tribunal was expanded
from allegations of disqualifying family conflicts to include allegations concerning
his prior financial dealings with the Band.
[5]
In
an affidavit deposed by the Band Administrator, Agnes Albert, it was asserted
that Mr. Paskemin “is related to numerous candidates in the [November 13, 2005]
election” including two nephews, a first cousin, a cousin once-removed, a niece
and a grand-nephew. Ms. Albert’s affidavit also claimed that in November,
2005, Mr. Paskemin was paid $300.00 for clearing brush and cleaning ditches (a
fact conceded by Mr. Paskemin) and that, throughout 2005, a business with which
he was involved (Paskemin & Associates Consulting) had benefited
financially from a number of contracts issued “under the auspices of the previous
Chief and Council”. It is noteworthy that Ms. Albert’s affidavit asserts that
Paskemin & Associates Consulting was “his [Mr. Paskemin’s] business” but
she offers no further evidence to indicate the extent of any actual financial
advantage accruing to him from the business.
[6]
Mr.
Paskemin’s responding affidavit indicates that none of the election candidates
related to him are in his immediate family and, in any event, most of the 1500
Band members “are related to each other in some way”. The extensive familial
linkages within Sweetgrass are confirmed in the affidavit of Ms. Albert and
highlighted by the relationships which existed between the Band Council’s
chosen replacement for Mr. Paskemin, Gordon Albert, and several election
candidates. Ms. Albert’s affidavit confirms the existence of Mr. Albert’s familial
relationships with election candidates similar to those of Mr. Paskemin
including a cousin, a sister-in-law, and a half brother.
[7]
With
respect to the allegations concerning Mr. Paskemin’s alleged financial interest
in the affairs of Sweetgrass, he deposed that Paskemin & Associates
Consulting was his daughter’s business in which he was only a nominal partner –
a business for which he did no work, from which he received no payment and
which has since been dissolved. Mr. Paskemin’s affidavit described his
financial circumstances and the nature of his prior work for Sweetgrass in the
following passage:
17. I have nothing to gain
financially whether the current or previous administration is in power. I am
retired and living on a small pension. Given my advanced age, I am not capable
of hard manual labour. If a minor job were to come up (such as cleaning a
ditch) and I was available, willing and capable of doing the job, I do not
think I would be prejudiced or advantaged regardless of who was in power as, as
stated, such incidental work tends to be awarded to whoever is around.
18. Lastly, the fact of any
previous work I did for the Band would have been well known to the newly
elected Band, yet no objection was made before or after the election, or to the
Federal Court when the Band previously sought to remove me for perceived bias.
Issues
[8]
a. Is
Sweetgrass entitled to relitigate the issue of Mr. Paskemin’s status as a
member of the Tribunal having regard to the previous decision of this Court and
to the principle of res judicata?
b.
Did
the Sweetgrass Band Council have any lawful basis for purporting to remove Mr.
Paskemin from the Tribunal on the basis of apprehended bias?
c.
What
is an appropriate award of costs?
Analysis
[9]
It
is a long established principle of Canadian law that a party to litigation is
not entitled to relitigate issues which have either been finally determined in
judicial proceedings between the same parties or with respect to issues which
could have been raised in such earlier proceedings. This rule requires a party
to litigation to put its complete case before the Court and to include all
matters which properly belong to the subject of the initial litigation. A
fairly recent pronouncement of this principle can be found in the Federal Court
of Appeal decision in Apotex Inc. v. Merck and Co., [2002] F.C.J. No.
811, 2002 FCA 210:
[28] It is also clear from the
Supreme Court of Canada's judgments in Maynard v. Maynard, [1951] S.C.R.
346, and Doering, supra, that issue estoppel operates to preclude a
party from litigating new issues which could have been raised, but were not, at
the earlier hearing. The judgment of the Judicial Committee of the Privy
Council in Hoystead v. Commissioner of Taxation, supra, at 165 is cited
with approval in Angle, Doering, and Maynard, supra:
Parties are not permitted to begin fresh
litigations because of new views they may entertain of the law of the case, or
new versions which they present as to what should be a proper apprehension by
the Court of the legal result either of the construction of the documents or
the weight of certain circumstances. If this were permitted litigation would
have no end, except when legal ingenuity is exhausted. It is a principle of
law that this cannot be permitted, and there is abundant authority reiterating
that principle.
It follows that a party will not be
permitted to return to Court to litigate that which could have been raised in
the earlier litigation before the Court.
[10]
The
above principle obviously applies to the issue raised on this application. In
the earlier proceeding the eligibility of Mr. Paskemin to sit as a member of
the Tribunal was squarely placed in issue by Sweetgrass in its pleadings and in
the evidence and argument which were advanced on its behalf.
[11]
Although
the previous basis for challenging Mr. Paskemin’s right to participate in the
work of the Tribunal related to claimed irregularities in his appointment,
there is no reason why the evidence now before me of alleged bias could not
have been tendered in the earlier proceeding. Presumably Mr. Paskemin’s family
relationships with some of the election candidates were well-known within the
Band. Similarly, Mr. Paskemin’s business and employment history with the Band
– limited as it was – would have been a matter of public knowledge. The fact
that no one in the Band took the trouble to look for the related documentary
evidence in the context of the earlier proceeding in this Court does not
satisfy the heavy burden of establishing reasonable diligence necessary to
bring new evidence in a fresh proceeding: see Doering v. Grandview,
[1976] 2 S.C.R. 621.
[12]
In
the earlier proceeding, I was asked to rule on Mr. Paskemin’s eligibility to
sit as a member of the Tribunal and I confirmed that right. The fact that
Sweetgrass failed to put its strongest case forward in that proceeding did not
give it the right to subsequently remove Mr. Paskemin from the Tribunal on the
basis of evidence that was known or reasonably available to it.
[13]
Mr.
Paskemin is quite correct in his assertions that the earlier Judgment of this
Court constituted a binding declaration confirming his right to sit on the
Tribunal and Band Council had no right to remove him in the face of that
declaration.
[14]
While
it is not strictly necessary to address the merits of the allegations of bias
levelled against Mr. Paskemin, it would, I think, be prudent to do so if for no
other reason than to remove any lingering concerns about that issue by the
electors of Sweetgrass.
[15]
The
essence of the allegations against Mr. Paskemin is that he received $300.00
from Sweetgrass for clearing some brush and ditches in late 2005 and that he may
have benefited from contract work given to a business in which he held an
interest, namely Paskemin & Associates Consulting. Mr. Paskemin has stated
under oath that he neither worked for nor benefited from his interest in
Paskemin & Associates Consulting. He deposed that the business was run by
his daughter and it has since been dissolved. That particular evidence was not
challenged by Sweetgrass and I, therefore, accept it over the bare and
unsubstantiated assertion by Sweetgrass that Paskemin & Associates
Consulting was Mr. Paskemin’s business.
[16]
Mr.
Paskemin’s family relationships to a number of election candidates both
successful or otherwise are not, of course, disputed.
[17]
The
question, then, is whether the above-noted evidence is sufficient to give rise
to an apprehension of bias such that Mr. Paskemin would be disqualified from
sitting on the Tribunal.
[18]
Dealing
first with Mr. Paskemin's family relationships, I am struck by the inconsistent
approach taken by Band Council to Mr. Paskemin’s eligibility from that adopted
in the case of his proposed successor, Mr. Albert. The argument that Mr. Paskemin's
family connections are sufficient to justify his removal but that the similar
relationships of Mr. Albert can be safely ignored, indicates that Band
Council’s stated reasons for removing Mr. Paskemin are illegitimate. Indeed,
one is left with the distinct impression that Band Council’s decision to remove
Mr. Paskemin was motivated by a political interest to delay the work of the
Tribunal and not by any real concern about a perceived lack of impartiality.
[19]
In
any event, the kind of family relationships relied upon by Sweetgrass to
justify Mr. Paskemin’s removal do not give rise to any concern about bias. In
a community of the size and composition of Sweetgrass, these types of distant
family connections are inevitable. To give them the kind of effect proposed by
the current Band Council would presumably disqualify almost every elector
within Sweetgrass from sitting on the Tribunal. Here, I am guided by the
common sense approach adopted by Justice Karon Sharlow in Lavallee v.
Louison, [1999] F.C.J. No. 1350 where she held:
[34] It is probable, given these
numbers, that the Tribunal members are likely to be people who have family,
social, work or business relationships with potential candidates. This is
confirmed by former Chief Sparvier, who says this in his affidavit:
By custom the individuals who
sit on the Appeal Tribunal are selected from members of the Cowessess First
Nation, and invariably the members of the Appeal Tribunal have some social,
family or business relationship with one or more of the many candidates who are
typically nominated for Chief or for a position on Council.
[35] To put too much weight on such
relationships in assessing the existence of a reasonable apprehension of bias
with respect to the Tribunal or the Appeal Tribunal could frustrate the objects
of the Election Act, ultimately paralyzing the electoral appeal process
altogether.
[20]
The
same basic principle applies to Mr. Paskemin’s prior financial dealings with
Sweetgrass such as they were. His work for the Band in 2005 and the resulting
compensation of $300.00 were presumably a fairly common experience within the
community and would not give rise to any realistic concern that the recipient
would not be able to render impartial service to the Tribunal. This is a
significantly different situation than the one which gave rise to Ms. Gollan’s
disqualification. She had a substantial and long-standing financial
relationship with Sweetgrass which included a close-working relationship with
the previous Chief and Band Council. Mr. Paskemin had no expectation of
continued employment by the Band and the amount of compensation which he did
receive in 2005 was nominal. For the reasons previously stated, Mr. Paskemin’s
nominal relationship to Paskemin & Associates Consulting is of no legal
significance.
[21]
In
conclusion, I reject unreservedly the allegations of bias levelled by Band
Council against Mr. Paskemin. There is simply no factual basis to support a
plausible argument that he would be unable to participate fairly and
impartially in the work of the Tribunal. This application for judicial review
is, therefore, dismissed.
[22]
I
would be remiss if I did not express a concern about the delay in having the
Tribunal carry out its mandate. The Band election was conducted more than
fifteen (15) months ago and another election is scheduled for November of this
year. It is essential that the Tribunal be permitted to complete its work and
its inability to do so to date is undoubtedly of concern to many Sweetgrass
electors having regard to the outstanding allegations of election impropriety
following the 2005 election. Notwithstanding the submissions made by counsel
for Mr. Paskemin, I do not believe that it is necessary for me to now direct
the Tribunal to proceed in accordance with its obligations under the Act nor do
I think it appropriate to direct Band Council to refrain from taking any
further action which could delay the work of the Tribunal. Suffice it to say
that this process should now move forward in a timely manner without further
unwarranted interference from Band Council or from any other interested party.
[23]
With
respect to the question of costs, I will, once again, order that Mr. Paskemin
be paid his legal costs on a solicitor-client scale. This is in conformity
with my earlier decision.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
THIS COURT FURTHER ADJUDGES
that legal costs on a solicitor-client scale be awarded to Mr. Paskemin.
"R. L. Barnes"
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