Docket: T-58-15
Citation:
2015 FC 1369
Ottawa, Ontario, December 9, 2015
PRESENT: The Honourable Mr. Justice Russell
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BETWEEN:
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MONTANA FIRST
NATION
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Applicant
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and
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SANDRA PEIGAN
AND BRADLEY RABBIT
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Respondents
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s 18.1 of the Federal
Courts Act, RSC 1985, c F-7 [Act] for judicial review of a decision of the Montana
First Nation Appeal Board [Appeal Board], dated December 18, 2014 [Decision],
which deemed invalid and set aside the results of a by-election held October
29, 2014 [By-election].
II.
BACKGROUND
[2]
Montana First Nation is a band within the
meaning of s 2 of the Indian Act, RSC, 1985, c I-5.
[3]
In October 2013, Montana First Nation updated
its election laws from its 1990 Montana Tribal Council Regulations
to the Montana Election Law [Election Law] and created the Draft
Regulations on the Election Process and Conduct of Members of Council [Regulations].
The Regulations were meant to provide guidance to Council, and were
distributed to its members. They were approved by Chief and Council, but were
never ratified by, or distributed to, the membership at large.
[4]
Montana First Nation held a general election, applying
the new Election Law, on October 7, 2014. Two candidates for councillor,
Randall Potts and Cody Rabbit Sr., had criminal records, but contended that the
Regulations allowed them to run, as they had not been convicted in the
past five years. Their nominations were approved by the Band’s Electoral
Officer.
[5]
The Respondent, Sandra Peigan, advised the
Acting Band Manager that improper nominations for councillor had been accepted.
Following consultation with legal counsel, the Acting Band Manager indicated to
the Electoral Officer that, given that the Regulations were only in
draft form, the Election Law would take precedence over them. The
Electoral Officer then opted to not apply the Regulations, and rescinded
the candidacies of Messrs. Randall Potts and Cody Rabbit Sr.
[6]
A new Chief and Councillor, Darrell Strongman,
as well as three other councillors, were elected in the October general
election. The Chief immediately resigned his councillor position to act as
Chief and the Electoral Officer called a By-election to fill the Council seat
vacated by Chief Strongman.
[7]
Four appeals were submitted following the By-election,
alleging violations of the Election Law. These appeals centered on
candidate eligibility (specifically in regards to the Criminal Record Check),
conflicts between the Election Law and the Regulations,
the nomination procedure, and irregularities with voting procedure and
tallying. The appeals were heard before the Appeal Board on November 7, 2014.
[8]
The By-election was held on October 29, 2014,
with five candidates running for the vacant councillor position, including each
of the Respondents. Mr. Bradley Rabbit was elected to the position with 80
votes.
III.
DECISION UNDER REVIEW
[9]
In its December 18, 2014 Decision, the Appeal
Board deemed the results of the By-election of October 29, 2014 invalid and set
them aside. The Appeal Board considered each of the four appeals alleging
violation of the Election Law in turn.
A.
First Appeal
[10]
The first appeal alleged that there was a
violation of the Election Law that may have affected the result of the By-election,
because there is no procedure governing the election of a candidate for two
positions; or there was an irregularity in the voting process that may have
affected the result of the By-election.
[11]
In terms of a violation of the Election Law,
the Appeal Board stated that the By-Election affected the results that would
have otherwise occurred at the general election. The Appeal Board highlighted two
mistakes: the order in which the ballots for Chief and for councillor were
counted; the restriction of the By-election candidates list to the general
election candidates.
[12]
As regards the first mistake, the Appeal Board said
that if the ballots for Chief were counted first, Chief Strongman would have
resigned or withdrawn from the councillor position producing different
elections results, or, if he did not resign until the appeals process, then a
by-election would be the proper course to follow.
[13]
The Appeal Board went on to find that procedural
unfairness would result from allowing other Montana First Nation members to run
for the position of councillor when two candidates who met the criteria and
paid their fees for the initial election already exist. Alternatively, had the initial
appeal period passed and the current Chief and Council decided that s 13 of the
Election Law was the procedure to be followed, s 13.1 would be triggered
and a by-election would be prompted.
[14]
The Appeal Board addressed alleged voting
process irregularities by stating that, while there are no sections in the Election
Law that stipulate how the ballots should be counted, s 13 of the Regulations
indicates that ballots for the position of Chief are to be counted first. It is
“questionable” whether Chief Strongman was a “member of Council” as he technically held two
positions that required waiting until the appeal period has passed before he
officially “entered into” either. Therefore,
much of this matter turns on whether s 13 applies.
[15]
Section 13 contemplates four situations in which
a by-election may be triggered: (1) to break a tie; (2) when a member of
Council resigns; (3) when a member of Council dies; and (4) when a member is
otherwise caused to vacate office. Only sections 2 and 4 are relevant here.
[16]
The Appeal Board stated that scenario 2 may not
apply as Chief Strongman was technically not yet a member of Council when he withdrew
from that position. Scenario 4 also presupposes that the candidate is a member
of Council which, given that the appeal period had not yet completed, is a
position that Chief Strongman did not yet hold.
[17]
Therefore, in terms of the first subject of appeal,
the Appeal Board affirmed that a violation of the Election Law occurred,
and that there was an irregularity in the voting process that resulted in the
activation of s 13.
B.
Second Appeal
[18]
The second appeal, similar to the first,
appealed whether a by-election was necessary when two viable candidates were
affected by Chief Strongman’s “dual win.” The Appeal
Board said that there were challenges to the principles of fundamental justice
resulting from the fact that the appeal period had not yet passed. This
violated the Election Law and caused irregularities in the voting
process. Additionally:
[t]he application of [the Election Law]
and [the Regulations] has resulted in miscommunication for candidates.
The Council Regulations did stipulate that the Office of Chief ballots were to
be counted first, therefore the withdrawal of candidacy of Mr. Strongman would
have seen a council elected from the October 7 pool of candidates.
Therefore, the Appeal Board concludes, there
was an irregularity in the voting process that led to the application of s 13.
C.
Third Appeal
[19]
The third appeal was based on irregularities
related to candidate eligibility criteria concerning severance packages. Its
dismissal by the Appeal Board is irrelevant to this judicial review.
D.
Fourth Appeal
[20]
The fourth appeal addressed alleged voting
irregularities and whether the decision to hold a by-election violates s 14 of
the Election Law, as no candidate begins to hold office until the day
following an election. The Appeal Board held that, as concluded in the other
appeals:
…there was a pre-emptive withdrawal by Mr.
Strongman prior to the commencement of office and prior to the completion of
the appeals process that may have impacted the voting selection of councillor
in the October 7, 2013 Montana Band Election. Alternatively, there should be
stipulations in the [Election Law] that call for ‘run offs’ for current
elections as opposed to relying on Section 13 By-elections.
[21]
The Appeal Board stated that there has been
confusion in separating the Election Law, the Regulations, past
practices and the 1990 Montana Tribal Council Regulations (which calls
for reviews and community consultation).
[22]
The Decision effectively overruled the decision
of the Electoral Officer that a by-election had been triggered. It set aside
the results of the By-election and held that a run-off election should be
called with only Ms. Peigan and Candace Buffalo, another of the original five
candidates, being permitted to run. The Decision also indicated that, given
that Ms. Buffalo intended to withdraw her candidacy, Ms. Peigan was acclaimed
and a new election would not be necessary.
IV.
ISSUES
[23]
The Applicant has raised the following issues:
1. Does the Decision lack procedural fairness?
2. Did the Appeal Board act beyond its jurisdiction?
3. Did the Appeal Board err in its interpretation of the Election Law
and/or the Regulations?
V.
STANDARD OF REVIEW
[24]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[25]
The standard to be applied to the first issue is
that of correctness: Khosa v Canada (Minister of Citizenship and
Immigration), 2009 SCC 12 at para 43 [Khosa]; Baker v Canada
(Minister of Immigration) [1999] 2 S.C.R. 817 at para 22.
[26]
Dunsmuir and
subsequent jurisprudence have demonstrated that questions of true jurisdiction are
narrow and arise infrequently: above, at para 59; Tan v Canada (Attorney
General), 2015 FC 907 at paras 37-39. To determine if it had jurisdiction
to hear a complaint, the Appeal Board first had to interpret the Election Law.
Unless a situation is exceptional, the interpretation of a tribunal of a
home statute or one closely connected to its function, will be presumed to be a
question of statutory interpretation, subject to deference and reviewable on
the reasonableness standard: ATA v Alberta (Information and Privacy
Commissioner), 2011 SCC 61 at para 34; B010 v Canada (Minister of
Citizenship and Immigration), 2015 SCC 58 at para 25. Therefore the second
and third issues will be reviewed under a standard of reasonableness.
[27]
Under the standard of correctness, deference
will not be shown to the decision-maker by the reviewing court. Rather, the
Court must be occupied by the question of whether the tribunal’s decision was
correct: Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister
of Labour), 2003 SCC 29 at para 100.
[28]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, above, at para 47; Khosa, above,
at para 59. Put another way, the Court should intervene only if the Decision
was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[29]
The following provisions of the Election Law
are applicable in this proceeding:
Section 12 – Election Appeals
12.1 Any candidate may appeal the results of
an election within thirty (30) days of the date of the election on the grounds
that there has been:
a. a violation of
this law that may have affected result of the election, or;
b. an irregularity
in the voting process
12.2 Notice of Appeal shall be made in
writing setting out the particulars of the alleged violation or irregularity,
and shall be sent by registered mail or personally delivered to the Electoral
Officer, who shall provide a written receipt of the Notice Appeal to the
candidate.
12.3 On receipt of a Notice of Appeal, the
Electoral Officer shall immediately notify the Council and the Appeal Board and
the Appeal Board and forward all ballots in their possession, together with the
Electors List and any other relevant documentation to the Appeal Board.
12.4 Within seven (7) days of receipt of the
Notice of Appeal, the Appeal Board shall:
a. hold an
Appeal on the issue or issues raise, or;
b. conduct an
investigation of the matter or issue alleged.
[…]
Section 13 – By-Elections
13.1 If an election is held to break a tie
vote, or a member of Council resigns, deceases or is otherwise caused to vacate
office, a by election for such vacant position shall be held no later than
thirty (30) days after the date on which the position became vacant, or on such
other date as determined by Council to be in the best interests of the Band.
13.2 The candidate receiving the greatest
number of votes in a by-election for a vacant position shall serve only for the
remainder of the term in office.
[…]
Section 14 – Commencement of Office
14.1 Subject to section 14.2, where the
position of Chief or Councillor is filled by election or acclamation, the
successful candidate shall commence office on the day following the election.
14.2 If an Appeal of the election or
acclamation is commenced, the individual holding the office to which the Appeal
relates shall cease to perform the duties associated with the office until the
Appeal process is completed and resolved.
VII.
ARGUMENTS
A.
Applicant
(1)
Procedural Fairness
[30]
The Applicant submits that the By-election
appeal process lacked procedural fairness by denying the Applicant and others
adequate notice and an opportunity to be heard.
[31]
The Applicant states that the Decision was
quasi-judicial. As such, the parties affected should have had the opportunity
to make representations before the tribunal, and receive proper notice allowing
them to do so: Supermarchés Jean Labrecque Inc v Quebec (Tribunal du
travail), [1987] 2 S.C.R. 219 at 146-177. In the present circumstances, this
did not occur. Montana First Nation was never invited to participate. Mr.
Rabbit was not advised of the details of the hearing, and other candidates in
the By-elections, Sheila Potts and Patti-Currie-Beebe, were not even aware of
the hearing until after it occurred.
[32]
The Applicant submits that the contents of the
Decision make it clear that the Appeal Board relied exclusively on the
submissions of the appellants, and so failed to follow the most basic requirements
of procedural fairness.
(2)
Jurisdiction
[33]
The Applicant submits that the Appeal Board went
beyond its jurisdiction in hearing appeals brought by ineligible appellants. Section
12.1 of the Election Law says that “[a]ny
candidate may appeal the results of an election within thirty (30) days of the
date of the election….” Neither Candace Buffalo nor Carolyn Buffalo,
both appellants, were candidates in the By-election. While Carolyn Buffalo did
run in the general election, she did not run for the position of councillor.
[34]
By incorporating into the Decision arguments of
individuals not entitled to appeal the By-election, the Appeal Board acted beyond
its jurisdiction.
(3)
The Interpretation and Application of the Election
Law and the Regulations
[35]
The Applicant submits that the Appeal Board erred
in its application of the Election Law with respect to the grounds of
appeal or, alternatively, that its interpretation of the Election Law was
unreasonable.
[36]
Section 12.1 of the Election Law,
provides that:
Any candidate may appeal the results of an
election within thirty (3) days of the date of the election on the grounds that
there has been:
(a) a violation of
this law and that may have affected the result of the election; or
(b) an irregularity
in the voting process.
[37]
The Applicant says the Decision dwelled too much
on the second half of ground (a). It should go without saying that the
By-election affected the results of the election, as Mr. Rabbit did not run in
the original election; therefore, he could not have won. The real question the Appeal
Board should have considered, concerns the second half of ground (a), whether
there was a violation of the Election Law which is a condition precedent
to the application of this section.
[38]
The Applicant argues that the Appeal Board
looked at the irrelevant question of whether there was procedural fairness in
allowing other candidates to enter into the race for Council when they had the
opportunity to do so at the first instance in the October 7, 2014 Election. The
Appeal Board’s conclusion that it would be procedurally unfair to allow other
Montana First Nation members to run for councillor when two candidates existed
who had paid their fees and met the criteria is unreasonable. Holding an open
by-election is not procedurally unfair. Furthermore, the candidates who had
already paid for the first election had two opportunities to run, and lost both
elections. Procedural fairness does not guarantee anyone a seat on Council.
[39]
The Applicant further submits that the Appeal
Board’s comments that counting ballots for Chief first would have changed the results
of the general election - because the Chief would have resigned or withdrawn
from the councillor position - is unsupported by the Election Law. This
is not the case, and it’s clear that there was no violation of the Election
Law because, the Applicant argues:
If the ballots for Chief were counted first
and Mr. Strongman resigned as councillor the result would be the same, since he
is permitted by the [Election Law] to hold both positions and in either
case his resignation of the councillor position would trigger a s. 13
by-election for that position. The only way there would be a different result
would be if Mr. Strongman, after being elected as Chief, withdrew as a
candidate for councillor before being elected, which is not only uncertain but
appears to be prohibited by s. 9.3 of the [Election Law]: “any candidate
may withdraw his/her name from the Candidates List no later than two (2) full
days before the election…
[40]
The Appeal Board also considered ground (b) of s
12.1 of the Election Law, inquiring into whether there was “an irregularity in the voting process.” The Applicant
submits that the Appeal Board’s conclusion that s 17 of the Regulations
requires ballots for Chief to be counted first is an incorrect assessment.
First, the Regulations should not have been applied as they were never
ratified by, or distributed to, the membership. This is why they were not
applied by the Electoral Officer. Second, the Electoral Officer was entitled to
exercise her discretion as to the ballot-counting order, and the Appeal Board
was not entitled to simply substitute its own interpretation.
[41]
As regards the Appeal Board’s finding that since
the Chief was not a member of Council he was not entitled to resign, and
therefore the By-election should not have been triggered. The Applicant submits
that the Electoral Officer was simply exercising her discretion in the
interpretation of the Election Law to deal with a situation not
contemplated in the statute. The Applicant says that the By-election may not
have strictly conformed to the requirements of s 13, but this does not render
it invalid: D’Or v St Germain, 2014 FCA 28 at para 8.
[42]
Section 14 of the Election Law reads:
14.1 Subject to section 14, where the
position of Chief or Councillor is filled by election or acclamation, the
successful candidate shall commence office on the day following the election
14.2 If an Appeal of the election or
acclamation is commenced, the individual holding the office to which the Appeal
relates shall cease to perform the duties associated with the office until the
Appeal process is completed and resolved.
[43]
The Applicant submits that the Election Law does
not contemplate a contradiction between on the one hand, holding the office and
temporarily not performing the duties of that office and, on the other, that if
an office can be held then it can also be resigned.
[44]
In terms of the Appeal Board’s alternative
conclusion that, after resigning, Chief Strongman would have been rendered
ineligible for office as per s 4 of the Election Law, the Applicant
submits that he could not be characterized, as is required by s 4(k), as a “candidate seeking the position of Chief or Councillor,”
and as such the requirement that he not have resigned from a Council position
is irrelevant. Therefore, Chief Strongman’s resignation as councillor would not
render him ineligible to hold office as Chief in the same term.
[45]
The Applicant submits that, even if Chief
Strongman was not permitted to resign until the end of the appeal period, the
result would have been the same, and a by-election would have been called as
per s 13.
[46]
The Applicant comments on the Appeal Board’s
assertion that there “should” be stipulations in the Election Law about
run-off elections. Run-off elections are only permitted in ties as per s 11.3,
and the Appeal Board is not entitled to decide an appeal based on what it
thinks should be in the law.
[47]
The conclusions of the Appeal Board that the By-election
results should be set aside and that a new “run-off” vote should take place,
and that “the remaining candidate” (the
Respondents) will be acclaimed, are neither correct nor reasonable and should
not be upheld.
[48]
The Applicant requests: (a) an order of certiorari
quashing the Decision; (b) a declaration that the hearing that resulted in the
Decision was not procedurally fair; (c) a declaration that the Decision contains
an error in law and/or is unreasonable; and (d) such further relief as counsel
may advise and this Honourable Court deems just.
B.
Respondents
[49]
The Respondents did not file written
submissions. Only Ms. Peigan appeared and spoke at the hearing of this
application.
VIII.
ANALYSIS
[50]
As the transcript of the September 15, 2015
hearing makes clear, the Court was very concerned about procedural fairness
matters in this application and the failure of the Appeal Board to produce a
record of its proceedings.
[51]
In particular, Ms. Peigan, who has no experience
in these matters, had been told in writing by Applicant’s counsel that she was
not obliged to file materials for the hearing because her arguments were
already reflected in the Appeal Board Decision and “therefore
will be before the Court.” Ms. Peigan wrote back to counsel that she was
confused about what she was being told by Applicant’s counsel, but the matter
was never clarified.
[52]
It was totally inappropriate for Applicant’s
counsel to advise Ms. Peigan that she did not need to file materials. There was
no written version of her arguments before the Court and this prevented her
from being able to make her full case at the hearing in any meaningful way.
[53]
Given the procedural irregularities, the missing
Appeal Board record, and the consequences of any further delay, the Court
proposed that a viable way forward that would give both sides what they wanted
would be to quash the obviously defective Appeal Board Decision under review
and return the matter so that a new appeal board could consider Ms. Peigan’s
complaints. The procedural fairness errors alone render the Decision untenable.
To simply quash the Decision would have meant that any irregularities with the
By-election process would simply be ignored, which would deprive Ms. Peigan of
her rights under the electoral appeal process and deprive the challenged
councillors of legitimacy.
[54]
This solution was accepted by both sides and the
Court indicated orally that this would be its decision. Counsel for the
Applicant also suggested that the Court, in its order, should provide
directions. Mr. Bailey advised the Court that “it would
make good sense to constitute a new Board” from outside the community
which would consider the election appeals in a legitimate way.
[55]
Mr. Bailey also advised that I should make it
clear that the old record would be irrelevant in any new appeal proceedings and
that I should direct that the new appeal board keep a record and make it
available to all interested parties, which he said “would
be of tremendous assistance.”
[56]
Mr. Bailey also advised the Court that my order “should address Mr. Rabbit’s continuing role” because
he thought “Ms. Peigan raises a good point”
about the fact that Mr. Rabbit, whose position on Council is being challenged,
continues to attend Council meetings.
[57]
The following excerpt from the transcript of the
hearing before me makes clear how this matter was concluded:
JUSTICE: Because if we -- if we go through
this process today, I mean, as is the case often, one side is always seriously
disappointed by the results or perhaps even both sides are, if I can’t produce
something, which is constructive, and to simply strike down the Appeal’s [sic]
Board, seems to me doesn’t clean up what may be the mess that lies behind the
Appeal’s [sic] Board as well, so that’s why I’m discussing this with
you.
…
JUSTICE: Well, whatever way that goes, we --
you know, it seems to me the only -- the only way out of this is to -- is to
strike a legitimate Appeal’s Board [sic] and have them hear these
appeals.
…
JUSTICE: -- once again that isn’t really an issue that I can deal
with because it’s -- it’s not before me. All I can do -- do is to deal with
this particular review application.
And, I think, I’m getting a -- some considerable
understanding of the problems from Mr. Bailey and Mr. Christoff. Although, they
didn’t suggest that this remedy was something they wanted, yet nevertheless I
don’t find them vigorously opposing it.
And in the end, it seems to me, its’s the only way to
get you what you also want, which is to have your appeal considered by a
legitimate Appeal’s [sic] Board.
So is that
something that you can consent to?
MS. PEIGAN: Yes, I will.
JUSTICE: Okay. Anything either of you wishes to say? I mean, what I
could do is, I guess, is to craft a consent order. Send it to you both, both
sides for any comments and suggestions what could provide me in writing.
But, I think,
today we’ve identified -- I think you’ve picked up what my concerns are and
what my objective is here, So if there -- there are any strenuous objections to
going in that direction, let me hear them now. Otherwise I will assume that
we’re working towards a rehearing of this by a newly constituted Appeal’s
Board.
MR. BAILEY: I -- think that’s going -- a newly constituted Appeal’s
[sic] Board appointed pursuant to the election law by the chief and
council.
And, again, I don’t -- this is a -- this is a thorny
issue. Ms. Peigan has raised it and I think it’s a legitimate concern that she
raises.
And that is, you know, the -- the -- the uncertainty of
Mr. Rabbit’s role within the -- you know, the governing body of chief and
council.
I think the law
states that during an appeal, the -- the elected councillor continues to sit as
a councillor, but cannot act as a councillor, if that makes -- makes sense? And
I -- I -- maybe we can have some discussion about that, but I think with
respect, My Lord, your order should perhaps address that.
JUSTICE: Well, I think if --
MR. BAILEY: If for no other reason, then, to
give some direction to chief and council.
JUSTICE: Well, I could -- I think in the order we could point out
that particular provision in the bylaw and ask chief and council, look, to
consider this in the way you’re handling things because, of course, that could
become a common issue later in any way -- you know, if this gets back into
litigation or whatever, if they have continued to disregard that, then that
could be a serious problem from their perspective.
But you’re right,
to try and give some guidance. That’s the way it ought to be pitched, Mr.
Bailey. I agree.
MR. BAILEY: Yeah. Yeah, it’s as – because,
as I understand your comments earlier, My Lord, the -- the consent order that
you’re considering does grant the -- relief of certiorari, but orders chief and
council to reconstitute a new Appeal Board and hear the appeal of Ms. Peigan.
JUSTICE: That’s -- that’s what I have in
mind.
MR. BAILEY: Yeah.
JUSTICE: But maybe the better way to go
about this is to – is to let you draft the consent order.
MR. BAILEY: Okay.
JUSTICE: You’ve got a much better feel for the
way Montana works than the Court has at this stage, and to run it by Ms. Peigan
--
MR. BAILEY: Yeah.
[58]
As the transcript makes clear, the Court reached
a conclusion on the application. The decision of the Appeal Board would be set
aside and the matter would go back for reconsideration by a different appeal
board. The Court would also provide directions on certain matters after further
input from Applicant’s counsel and Ms. Peigan on appropriate wording. In fact,
the Court asked counsel to prepare a draft consent order that would take into
account the practicalities of appointing a new appeal board and dealing with
the situation of Mr. Rabbit. If there were any problems in this regard then the
Court agreed matters could be discussed “by conference
call or something like that.”
[59]
The end result is that the Court reached a
decision on the application but gave the parties on opportunity to draft a
consent order that would address practicalities to their mutual satisfaction.
Failing agreement on practicalities, the Court would simply draft its own
order.
[60]
Having been given the opportunity to make
drafting suggestions, the Applicant subsequently recanted and asked for the
hearing to proceed and the Court to order the Appeal Board to produce its
record. This cannot occur; the hearing has taken place. The Court is functus
as regards the principal decision. The application is allowed but the matter is
returned for reconsideration by a differently constituted appeal board who will
hear and deal with Ms. Peigan’s appeal in accordance with the directions of the
Court. The only matter that remained to be decided was the precise wording of
the directions, and the formulation of the order. The Court made its
conclusions clear and both sides were in agreement. The fact they may have now
decided not to agree makes no difference to the Court’s conclusions which are
set out in the transcript. The Court made a decision but allowed that a
conference could be held if the parties could not agree on the drafting they
wanted to see in the order, to deal with the appointment of the new appeal
board and the continuing role of Mr. Rabbit.
[61]
Both the Applicant and Ms. Peigan have
subsequently provided the Court in writing their respective suggestions for
wording that should be contained in the Court’s order. The Court has considered
these suggestions.
[62]
The Applicant has also acknowledged that the
effect of s 14.2 of the Election Law requires that “the individual holding office to which the Appeal relates
shall cease to perform the duties associated with the office until the Appeal
process is completed and resolved.” The Applicant and Mr. Rabbit have
both affirmed that they will comply with s 14.2 of the Election Law
pending the outcome of Ms. Peigan’s appeal.
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