Date: 20070824
Docket: T-799-05
Citation: 2007 FC 853
Ottawa, Ontario, August 24,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
LEONARD
ALOOK and MARCEL GLADUE
Applicants
and
THE BIGSTONE CREE NATION
SECOND ELECTION
APPEAL REVIEW BOARD being MARIE LAVOIE,
KAREN GREYEYES and MARION WOLITSKI and
the Bigstone Cree
Nation, and
CHARLES HOULE and ERNEST AUGER
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Leonard
Alook and Marcel Gladue were successful candidates in an election for Band Councillors
for the Bigstone Cree Nation. After an Appeal Board determined in 2005 that
there were irregularities in the electoral process, Messrs. Alook and Gladue
brought this application for judicial review of the Appeal Board’s findings,
asserting that they were denied procedural fairness in the process, and that
the Appeal Board was biased against them.
[2]
For
the reasons that follow, I am satisfied that the applicants were indeed denied
procedural fairness in the appeal process, and that, as a result, this
application must be allowed.
Background
[3]
An
election for Chief and Council of the Bigstone Cree Nation was held on
September 17, 2002. The applicants were elected as Band Councillors.
[4]
Appeals
were then filed with respect to this election by the respondents Charles Houle
and Ernest Auger, and by Albert Gladue. The appeal documentation asserted that
there had been a variety of problems with respect to the conduct of the
election.
[5]
A
three-person Appeal Board (the “first Appeal Board”) was then established to
consider the appeals, pursuant to the Bigstone Cree Nation’s Election Code. In
addition to reviewing the documentation filed by the appellants, it appears
that the first Appeal Board also met with the appellants and obtained further
information from them with respect to their appeals.
[6]
At
no time was either Mr. Alook or Mr. Gladue given notice of the appeal
proceedings, nor was either of them provided with the substance of the
allegations made by the appellants, or the evidence supporting them. Moreover,
neither Mr. Alook nor Mr. Gladue was given any opportunity to be heard by the
first Appeal Board.
[7]
In
a decision dated October 21, 2002, the first Appeal Board found there to have
been significant irregularities in the electoral process, as alleged by Charles
Houle and Ernest Auger. Albert Gladue’s appeal was dismissed.
[8]
An
application for judicial review was then brought by Messrs. Alook and Gladue
with respect to this decision. They argued that the first Appeal Board had
failed to give them any notice of the appeals, and had denied them the
opportunity to make representations with respect to the appeals. The
applicants also submitted that the first Appeal Board was biased, as a result
of the close relationship between some of the members of the Board, and failed
candidates in the election.
[9]
The
application for judicial review culminated in an order being made by Chief
Justice Lutfy on December 12, 2004, in which he set aside the decision of the
first Appeal Board, and remitted the matter for a new hearing before a
differently constituted Appeal Board.
[10]
It
should be noted that this order was made on the consent of the parties to that
application for judicial review.
The Second Appeal Board
Hearing
[11]
A
new Appeal Board was established in February of 2005 (the “second Appeal
Board”). The second Appeal Board was also composed of three members, namely
the respondents Marie Lavoie, Karen Greyeyes and Marion Wolitski.
[12]
While
the record is not entirely clear as to the procedure followed by the second Appeal
Board, the uncontradicted evidence before the Court is that once again, neither
Mr. Alook nor Mr. Gladue was given notice of the appeal proceedings, nor was
either of them provided with the substance of the allegations or the evidence
against them.
[13]
Moreover,
neither individual was afforded any opportunity to be heard by the second
Appeal Board.
[14]
On
April 9, 2005, the second Appeal Board rendered a decision, which essentially
adopted the conclusions of the first Appeal Board. Specifically, the second
Appeal Board noted that two infractions of the Election Code found by the first
Appeal Board to have occurred – the voting by Polling Clerks during the
election, and the failure to adhere to the nomination procedure specified in
the Election Code with respect to the eligibility of candidates – were
sufficient by themselves to call into question the legitimacy of the
election.
[15]
As
a consequence, the second Appeal Board ordered that the Bigstone Cree Nation
hold a new election.
[16]
It
is this decision that is at issue in this application for judicial review.
Issues
[17]
Messrs.
Alook and Gladue raise two issues on this application. Firstly, they say that
they were denied procedural fairness in relation to the hearing conducted by
the second Appeal Board, by being denied the right to know the case that they
had to meet, and by being denied the right to respond to it.
[18]
Secondly,
the applicants say that by essentially adopting the findings of the first
Appeal Board as their own, the second Appeal Board was tainted by the bias that
affected the proceedings before the first Appeal Board.
Standard of Review
[19]
No
submissions were made with respect to the standard of review that should be
applied to the decision of the second Appeal Board.
[20]
Both
issues identified by the applicants raise questions of procedural fairness. In
Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA
404, at ¶ 52-53, the Court noted that the pragmatic and functional analysis
does not apply where judicial review is sought based upon an alleged denial of
procedural fairness. Rather, the task for the Court is to isolate any act or
omission relevant to the question of procedural fairness, and to determine
whether the process followed by the decision-maker in question satisfied the
level of fairness required in all of the circumstances.
Participation of the
Respondents at the Hearing
[21]
It
should be noted that although none of the respondents filed any submissions in
response to this application, counsel for the Bigstone Cree Nation appeared at
the hearing “as a courtesy to the Court”. Counsel explained that the Bigstone
Cree Nation took no position in relation to the merits of the application, as
it was of the view that it had an obligation to remain neutral in this matter.
[22]
Two
members of the second Appeal Board, namely Marie Lavoie and Marion Wolitski
also appeared at the hearing.
[23]
Given
that the applicants were seeking solicitor and client costs against the
respondents, all of the respondents appearing at the hearing were permitted to
make submissions on the issue of costs.
Analysis
[24]
I
will deal first with the propriety of the procedure followed by the second
Appeal Board in this matter.
[25]
At
the outset, it bears noting that the Bigstone Cree Nation has a written
Election Code. This document sets out the process whereby the results of an
election may be challenged, and further provides the authority for the
establishment of Appeal Boards to consider the merits of challenges to election
results. The Election Code does not, however, make provision for any
participatory rights on the part of successful candidates whose election is
being challenged through the appeal process.
[26]
That
being said, it is well established by decisions of this Court that while it is
important that Bands have autonomous processes for the election of governments,
minimum standards of procedural fairness or natural justice are nonetheless
required: see, for example, Sparvier v. Cowessess Indian Band No. 73
(1993), 63 F.T.R. 242, at ¶ 47.
[27]
In
Sparvier, Justice Rothstein noted that candidates in Band elections are
affected by decisions of Appeal Boards, and are thus entitled to fair
hearings. At a minimum, this requires that affected individuals are entitled
to notice of the allegations, and that they be provided with an opportunity to
make representations: see Sparvier at ¶ 52.
[28]
In
this case, there is no doubt that these minimum standards were not met. While
Messrs. Alook and Gladue had undoubtedly become aware of the nature of the
allegations made against them through the judicial review proceedings taken in
relation to the decision of the first Appeal Board, they were never provided
with notice of these allegations in the context of the second Appeal Board
proceedings.
[29]
Even
more importantly, neither individual was ever provided with any opportunity to
respond to those allegations before the second Appeal Board.
[30]
As
a consequence, I am satisfied that the conduct of the proceedings carried out
by the second Appeal Board was unfair to Messrs. Alook and Gladue, and that, as
a result, the April 9, 2005 decision of the second Appeal Board must be set
aside.
[31]
I
will also deal briefly with the allegation that a reasonable apprehension of
bias existed with respect to the second Appeal Board.
[32]
The
test for determining whether actual bias or a reasonable apprehension of bias
exists in relation to a particular decision-maker is well known: that is, the
question for the Court is what an informed person, viewing the matter
realistically and practically - and having thought the matter through – would
conclude: see Committee for Justice and Liberty v. Canada (National
Energy Board), [1978] 1 S.C.R. 369, at p. 394.
[33]
In
my view, Messrs. Alook and Gladue have not demonstrated the existence of a
reasonable apprehension of bias on the part of the second Appeal Board. Even
if I were to accept that the decision of the first Appeal Board was tainted by
bias, the fact that the second Appeal Board seemingly adopted the reasoning of
the first Appeal Board does not, by itself, demonstrate the existence of a
reasonable apprehension of bias on the part of the second Appeal Board.
Remedy
[34]
As
noted above, I am satisfied that the proceedings before the second Appeal Board
were unfair to Messrs. Alook and Gladue, and that, as a result, the April 9,
2005 decision of the second Appeal Board must be set aside.
[35]
Where
a finding has been made that a reviewable error has been made in arriving at a
decision, the normal practice is to send the matter back for a new decision to
be made. However, in this case, there is little to be gained in so doing. The
disputed election took place in 2002, and it appears that there has been at
least one intervening Band election since that time. The applicants evidently
chose not to stand for re-election in that election. In these circumstances,
there is nothing to be gained by referring this matter back for a third hearing
of the election appeal.
[36]
As
a consequence, while I am satisfied that the applicants were denied procedural
fairness in relation to the proceedings before the second Appeal Board, I
decline to remit the matter for a further hearing.
Costs
[37]
The
applicants seek solicitor and client costs in connection with this application,
submitting that the procedural errors in the conduct of the first appeal which
gave rise to the consent order of Chief Justice Lutfy in December of 2006 were
well known in the community, and that the second Appeal Board nevertheless went
on to make precisely the same errors the second time around.
[38]
The
applicants point out that virtually no procedural guidance was provided to the
second Appeal Board by the Band. According to the applicants, this supports an
order of solicitor and client costs being made against the Band.
[39]
Counsel
for the Bigstone Cree Nation concedes that given the recognition that the
hearing before the first Appeal Board was flawed, as is reflected by the order
setting aside the first Appeal Board’s decision going on consent, there was
some duty on the Band to provide procedural guidance to the second Appeal
Board, in order to ensure that the same mistakes were not made again.
Nevertheless, counsel for the Band submits that its failure to do so does not
support an order for solicitor and client costs.
[40]
Ms.
Lavoie and Mr. Wolitski point out that they served on the second Appeal Board
on a voluntary basis, and received no guidance whatsoever from the Band with
respect to the procedure that they were to follow in connection with the
conduct of the appeal. In this regard, a copy of the letter constituting the
second Appeal Board was provided to the Court, which simply directs the second
Appeal Board to “review and make a decision”.
[41]
I
am of the view that in the particular circumstances of this case, it is
appropriate that an award of costs be made in favour of the applicants, and
that the order should be made solely against the Band. In addition to the
grounds advanced by the applicants in support of such an award, I would further
note that the Bigstone Cree Nation’s Election Code is clearly inadequate, as it
makes no provision for any participatory rights on the part of successful
candidates whose election is challenged, and thus provides no procedural
guidance to Appeal Boards.
[42]
That
said, I am not persuaded that the conduct of the Bigstone Cree Nation was such
as would justify an award of solicitor and client costs being made against it.
[43]
For
these reasons, considering the factors set out in Rule 400(3) of the Federal
Courts Rules, and in the exercise of my discretion, I order that the
Bigstone Cree Nation is to pay the applicants’ costs of this application, which
I fix at $3,000.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The
application for judicial review is allowed, and the April 9, 2005 decision of
the second Appeal Board is set aside.
2. For the reasons
previously given, I decline to remit the matter for a further hearing.
3. The
applicants are entitled to their costs of this application from the Bigstone
Cree Nation, in the amount of $3,000.
“Anne
Mactavish”
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