Docket: T-2064-13
Citation:
2014 FC 1052
Ottawa, Ontario, November 6, 2014
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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TONY TESTAWICH
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Applicant
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and
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DUNCAN’S FIRST NATION CHIEF AND COUNCIL
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Mr Testawich, the applicant, is a member of the Duncan’s First Nation, located on Treaty 8 land in north-western Alberta. On July 15, 2013,
he was elected to the position of councillor. On November 18, 2013, he was
removed from that office by the Duncan’s First Nation Appeals Committee
(Committee). Mr Testawich has sought judicial review of that decision. For
reasons expressed orally at the hearing and set out below, the application is
granted and Mr Testawich is restored to the office to which he was elected.
II.
Facts
[2]
Following the election and swearing in of the
newly elected Chief and Councillors, Mr Denis Knott – an unsuccessful
candidate– lodged an appeal with the Committee by letter dated August 7, 2013. He
alleged that the applicant had contravened Section 4(B) of the Duncan First
Nation Custom Election Regulations, which had been provided to all candidates
before the election (the Regulations). He included four short letters from
other Duncan’s First Nation members in support of his complaint. These letters
said nothing more than that the writers had voted for Mr Testawich but had not
known that he had breached the Regulations.
[3]
On September 4, 2013, the applicant received an
email from Conroy Sewepagaham, the Band manager, informing him that the
Committee would hold a hearing on this matter. In reviewing the Regulations
under which the election had been conducted, the applicant discovered that they
were different from those used in past elections, which he had in his records.
He obtained the correct version from Aboriginal and Northern Affairs Canada and
brought that to the attention of the Chief and Council. A legal opinion was
sought and obtained to the effect that the discrepancies between the correct
version of the Regulations and the version used to conduct the election were
not material and that a new election was not required.
[4]
On September 10, 2013, the Committee’s Chair
sent an email to Mr Sewepagaham advising that the Committee had no function in
the appeal and had excused itself as of the previous day.
[5]
On October 1, 2013, Mr Knott sent another letter
to the Committee, stating that he was “re-appealing the
election”. In doing so, Mr Knott relied on his complaint letter dated
August 7 and the four letters he had previously submitted in support of his
complaint.
[6]
The substance of Mr Knott’s complaint was based
on section 4(B) of the version of the Regulations used to conduct the election.
Section 4(B), which is section 4.1(2) of the correct version, states:
A candidate for election as Chief or Councillor
may obtain from the electoral officer a list of the names of electors and the
addresses of any electors who have consented to have their addresses released
to the candidates.
[7]
Mr Knott alleged that the applicant had contacted
and harassed electors who had not provided this consent.
[8]
The Committee held a hearing on November 16,
2013. There is no written record of this hearing. Mr Testawich attended and
made oral submissions. The Chair opened the floor to members of the Band, many
of whom made oral submissions. Mr Testawich alleges that the meeting was “out of control” and that the Chair rejected his
repeated requests that he impose order and take written notes.
[9]
On November 18, 2013, the applicant received a
copy of the Committee’s decision (the Decision). The entire text of the
decision reads as follows:
The Appeal Committee of the Duncan First Nation
Election, held the Appeal Hearing today, November 16, 2013; following are the
results of the decision made by the Committee:
After a review and hearing of all the evidence
that we have received; we believe that the evidence does support the finding
that;
As per Section 12.I.2: There was a violation
of the Election Regulations that may have affected the results of the Election.
The decision of the Appeal Committee is to declare
the immediate removal of Tony Testawich; effective November 18, 2013. The
actions made by Tony Testawich before, during and after the Election has
resulted in this immediate release in his position as Band Councillor of the
Duncan First Nation.
Therefore; the Appeal Committee has set aside
the by-election of the last Councillor position that was held by Tony
Testawich. This by-election must follow the Duncan First Nation Election
Regulations, dated January 12, 2006.
As per section 12(L): The decision of the
Appeal Committee is final and not subject to appeal.
Signed on this 17th day of November,
2013.
[Emphasis added]
[10]
There is no evidence in the record regarding the
alleged “actions made by Tony Testawich before, during
and after the Election” other than the allegations contained in Mr
Knott’s complaint letter.
[11]
In a letter from the Chief dated November 18,
2013, Mr Testawich was advised that he was eligible to run in the by-election.
Mr Testawich alleges that he was prevented from doing so. Another candidate was
elected to fill the vacancy on March 7, 2014.
III.
Issues
[12]
Aside from numbering differences, the content of
the version of the Regulations used to conduct the July 15, 2013 election is
identical to that of the correct version. Counsel could not point me to any
basis upon which to conclude that the error was material. Accordingly, I will
not deal with this matter further.
[13]
I am also of the view that Mr Knott’s complaint
was not time-barred, as argued by the applicant, as it was initially submitted
within the 45 day limitation period provided by the Regulations. In view of my
finding on the issue of estoppel below, the fact that Mr Knott
characterized his subsequent letter as a “re-appeal”
does not alter the fact that the Committee had not made a determination on the
merits of the original complaint but merely suspended its consideration of the
matter.
[14]
The remaining issues are:
1.
What is the appropriate standard of review?
2.
Was the Committee barred from making the Decision
due to cause of action estoppel or res judicata?
3.
Did the Committee err in interpreting and
applying the Regulations when making the Decision?
4.
Did the Committee breach the duty of procedural
fairness it owed the applicant?
5.
What are the appropriate remedies?
IV.
Analysis
V.
Standard of review
[15]
There is no dispute that the standard of
correctness applies to questions of procedural fairness: Dunsmuir v New Brunswick, 2008 SCC 9 at para 129; Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 43; Mission Institution v Khela,
2014 SCC 24 at para 79; Metansinine v Animbiigoo Zaagi’igan Anishinaabek
First Nation, 2011 FC 17 at para 16.
[16]
The applicant submits that the standard for
reviewing an election appeal committee’s interpretation of election regulations
is also reviewable on the standard of correctness, citing Martselos v Salt
River First Nation, 2008 FCA 221 at para 32. As the respondent points out, however,
Martselos is no longer good authority on the standard applicable to the
interpretation of election regulations. In two more recent decisions, the
Federal Court of Appeal has held that the reasonableness standard should apply:
Fort McKay First Nation v Orr, 2012 FCA 269 at paras
10-11 [Orr]; D’Or v St Germain, 2014 FCA 28 at paras 5-6 [St
Germain]. See also Lower Nicola Indian Band v York, 2013 FCA 26 at
para 6; Tsetta v Band Council of the Yellowknives Dene First Nation,
2014 FC 396 at para 22; Ferguson v Lavallee, 2014 FC 569 at para
63.
A.
Was the Committee barred from making the
Decision due to cause of action estoppel or res judicata?
[17]
The respondent contends that the applicant is
barred from raising cause of action estoppel or res judicata as a ground
for relief as it is not clearly set out in the applicant’s amended notice of application.
I disagree.
[18]
Rule 301(e) of the Federal Courts Rules,
SOR/98-106, requires that a notice of application set out “a complete and concise statement of the grounds intended to be
argued”. Applicants are not permitted to raise grounds of review which
were not disclosed in the notice of application or the supporting affidavits: Republic
of Cyprus (Commerce and Industry) v International Cheese Council of Canada,
2011 FCA 201 at paras 11-15; Métis National Council of Women v Canada (Attorney
General), 2005 FC 230 at para 49, affirmed without comment on this point in
2006 FCA 77. However, a notice of application is not a pleading and is not to
be viewed with the same rigour as a statement of claim: Aventis Pharma Inc v
Canada (Minister of Health), 2005 FC 1396 at para 21.
[19]
Although the applicant does not explicitly use
the words “cause of action estoppel” or “res judicata” in his notice of application, I am
satisfied that he sufficiently alluded to them in the amended notice and that the
respondent has suffered no prejudice by the applicant raising these arguments
in his memorandum. The respondent has had the opportunity to reply and has, in
fact, offered detailed submissions to this Court.
[20]
However, upon reflection and applying the tests
set out in Beattie v Canada, 2001 FCA 309 at paras 27-31 and in Danyluk
v Ainsworth Technologies Inc, 2001 SCC 44 at para 25, I am not satisfied
that the applicant has made out that either cause of action or issue estoppel
applies to the present case. A final judicial decision is required for either to
apply. The Committee’s decision to discontinue the matter cannot be interpreted
as a final adjudicative decision on the merits of Mr Knott’s complaint. The
Committee made a procedural decision to suspend the matter. Its subsequent
procedural decision – to revive the appeal – was in my view unfair to the
applicant in the circumstances, but the Committee was not estopped from doing this
by reason of its prior decision.
B.
Did the Committee err in interpreting and
applying the Regulations when making the Decision?
[21]
As noted above, the Committee’s interpretation
and application of the Regulations must be reviewed on the standard of
reasonableness. As the Supreme Court famously stated in Dunsmuir, above,
at para 47:
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.
[22]
As the respondent admits, the Committee does not
support its finding that the applicant violated the Regulations with any
reference to specific provisions he might have violated, nor with any
discussion of the evidence. This is not in itself a sufficient basis upon which
to find that the decision was unreasonable. The Supreme Court has instructed
that a reviewing court must pay “respectful attention to
the reasons offered or the reasons which could be offered in support of
a decision”: Dunsmuir, above, at para 48; Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 12 [Newfoundland Nurses] [emphasis added].
[23]
I agree with the respondent that, in applying
the reasonableness standard, the Court must defer to factual determinations
made by the decision-maker. This applies especially to decisions made by First
Nations in interpreting their own Election Regulations and Band customs.
However, the Federal Court of Appeal has established that band election laws
are to be construed using the general principles of statutory interpretation
and the modern approach: Boucher v Fitzpatrick, 2012 FCA 212 at para 25.
Thus the ordinary meaning of the words in question will play a dominant role in
the interpretive process when they are precise and unequivocal: Canada
Trustco Mortgage Co v Canada, 2005 SCC 64 at para 10.
[24]
The respondent submits that the applicant
improperly communicated with certain members of the First Nation in
contravention of section 4(B) of the Regulations. The Committee could thereby
uphold the appeal and set aside the election, pursuant to section 12(1).
[25]
The applicant submits that the Committee erred
in interpreting section 4(B) of the Regulations. The words of that section are
precise and unequivocal. They state that a candidate can obtain the names and
addresses of electors who have consented to having this information released – “nothing more and nothing less”. Section 4(B) does not
in any way suggest that candidates are prohibited from speaking with electors
who have not consented to having this information released.
[26]
The applicant says that he did not obtain
information about candidates who had not consented. He simply reached out to
electors whom he already knew, mainly friends and family members. He already
had the email and Facebook contact information of the persons whom Mr Knott
alleges he harassed during the campaign.
[27]
Duncan’s First Nation
has about 300 members. There is no evidence in the record that the applicant
obtained the names and addresses of electors whom he did not know personally
and then solicited their support contrary to their expressed wishes.
[28]
The only basis upon which the Court may
interpret the decision is by reference to Mr Knott’s complaint. He alleged that
the applicant had breached section 4(B) of the Regulations. This is the only
allegation that the Committee ever brought to the applicant’s attention. The
Court may and does draw the inference that the Committee grounded its decision
on this particular provision, as opposed to some other allegation which has
never been disclosed.
[29]
The question is whether the Committee could have
justified its decision with a reasonable interpretation and application of
section 4(B). I agree with the applicant’s position on the interpretation of
section 4(B).
[30]
The respondent’s position – that any
communication between a candidate and an elector who has not provided consent
under section 4(B) is improper and prohibited – finds no support in the text of
the Regulations. It is also unreasonable in the context of a democratic
election to impose such a far-reaching prohibition on communications between a
candidate and electors.
[31]
The Committee offered no intelligible
explanation for this approach, and so its decision to remove Mr Testawich from
office is not defensible in respect of the facts and the law.
C.
Did the Committee breach the duty of procedural
fairness it owed the applicant?
[32]
There is no dispute between the parties that the
Committee owed a duty of fairness to the applicant. The Supreme Court set out
the relevant factors to be considered in Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras 21-28:
1.
the nature of the decision being made;
2.
the nature of the statutory scheme;
3.
the importance of the decision to the individual(s)
affected;
4.
the legitimate expectations of the person
challenging the decision; and
5.
the choice of procedures made by the tribunal
itself.
[33]
The respondent acknowledges that the applicant
did not receive notice of the appeal in the manner contemplated by the
Regulations (registered mail). The appeal documents were slipped under the
office doors of the Chief and Council members. However, the respondent submits
that the applicant did have actual notice of the hearing and the supporting
documents. The respondent further submits that the Regulations do not require
the Committee to keep a written record of appeal hearings or to provide reasons,
and so its failure to do either of these things cannot breach the duty of
fairness. The applicant was present at the hearing and made oral submissions.
He therefore availed himself of such procedural rights as he desired: Bighetty
v Barren Lands First Nation, 2014 FC 171 at paras 52-53.
[34]
In my view, the Baker factors weigh in
favour of a duty on the more robust end of the spectrum. First, the Committee
reached its decision through a process resembling that of a court, since it has
the task of resolving complaints by reference to Regulations establishing
rights and duties. The Supreme Court has stated that such decisions warrant a
high degree of procedural fairness: Baker, above, at para 23. The fact
that there is no internal appeal in the statutory scheme also militates in this
direction: Baker at para 24.
[35]
The decision itself did not affect the
applicant’s liberty or security interests and is, therefore, of moderate importance.
However, it has affected his reputation in the community and has also deprived
the members of the First Nation of their elected representative. The applicant
submits that his expectations were that the hearing would be procedurally fair
and that the Committee would maintain a record of the proceedings and provide
written reasons of its decision.
[36]
The failure to provide formal notice of the
appeal proceedings did not contravene the duty of fairness, since the applicant
obtained actual notice on September 4 and November 4, 2013. The duty does not
require that a particular procedure must be followed.
[37]
However, in my view, the Committee caused
significant prejudice to the applicant by failing to keep a written record of
the hearing and the evidence. Coupled with the minimalist wording of the
eventual decision, this prevented the applicant from understanding why he was
removed from Council. In addition, the applicant alleges that the hearing was
conducted unfairly and that it descended into chaos due to the Chair’s failure
to maintain order. The Court cannot assess whether this actually happened
because of the Committee’s decision against keeping a written record. Had this
simple procedure been followed, the appeal process would have been fairer – and
appeared fairer – to everyone involved.
[38]
Contrary to the respondent’s submissions, mere
compliance with the Regulations does not guarantee fairness. The Court must
review the administrative proceedings in substance and query whether they
conformed to the fundamental principles of natural justice. Nor can the
respondent rely on Bighetty, above, for the proposition that the
applicant availed himself of the procedural rights that he desired by making
oral submissions at the hearing. In Bighetty, the applicant had disputed
the validity of the administrative proceedings taken against her and had
refused to accept service of relevant documents. In this case, the applicant
says that he repeatedly demanded that the Chair take written notes and impose
order. The respondent has not explicitly contradicted this claim. It therefore
appears that the Committee denied the applicant the rights of which he
desired to avail himself.
[39]
The Supreme Court has clarified that the failure
to provide reasons should be reviewed within the context of the reasonableness
analysis of the decision itself, rather than as a breach of procedural
fairness: Newfoundland Nurses, above, at paras 21-22. In this
case, the insufficiency of the Committee’s reasons has contributed to my
finding that the decision is unreasonable.
D.
What are the appropriate remedies?
[40]
The respondent requests the following remedies:
1.
An Order declaring that his procedural rights
have been violated;
2.
An Order quashing the Appeal Committee’s
decision on the basis of error of law;
3.
An Order declaring the by-election null and
void;
4.
An Order re-instating the applicant to the
position of councillor with back pay from the day he was removed from Council;
and
5.
Costs on a solicitor-client basis, or in the
alternative, on a party-party basis.
[41]
The respondent submits that the remedy of
reinstatement is inappropriate due to the mistrust that now exists between the
applicant, the Chief and Council and the First Nation. Further, the respondent
contends that the applicant has mitigated his damages by taking on employment
since the Decision, such that full retroactive pay would place him in a better
position than he would have been had he not been removed from Council.
[42]
I agree that Orders quashing the Appeal Committee’s
decision, declaring the by-election null and void and re-instating the
applicant to the position of councillor are appropriate. I am not persuaded
that this is a case in which to grant costs on a solicitor client basis. The
fact that the applicant sought and obtained alternative employment is, in my
view, immaterial. This is not an action in which the plaintiff would have an
obligation to mitigate his damages. In any event, to the extent that the
applicant may gain some advantage from the outcome, he is not being granted his
costs on a full indemnity basis and that will offset the benefits to some
extent.
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